Tag: zimbabwe

FAMILY LAW- Types of Marriages in Zimbabwe

Types of Marriages in Zimbabwe

Posted by nnlaw on with 11 Comments

FAMILY LAW: Types of Marriages in Zimbabwe

There are three types of marriages in Zimbabwe and these are Civil Marriage (registered under Marriage Act, Customary Marriage registered under Customary Marriages Act and an Unregistered Customary Law Union (kuchaya mapoto). A marriage can only be entered into by parties of the opposite sex who are 18 years and above.

  1. Civil Marriage

This is a marriage governed and registered under the Marriage Act [Chapter 5:11) formerly known as Chapter 37. This kind of marriage is monogamous meaning it is between one husband and one wife. A wife or husband cannot contract any other marriage after having entered into this kind of marriage if they do so they would have committed an offence called bigamy and an aggrieved party can sue for adultery damages. In terms of the Married Persons Property Act 1982 all marriages in Zimbabwe from 1929 are out of community of property. This means in this type of marriage a spouse can own or dispose of property registered in his or her individual name without the consent of the other spouse. In the recent case of Chigwada vs Chigwaga SC-188-20 it was ruled that a spouse is not entitled to bequeath property registered in his or her individual name through a will to the other spouse but can do so to anyone he or she chooses. However, parties married in terms of this type marriage can own properties jointly.

A civil marriage can only be terminated or cancelled by the High Court through a process called a divorce. A divorce is governed by the Matrimonial Causes Act [Chapter 5:13]. This Act provides for the permissible grounds of divorce, distribution of property during a divorce and maintenance for minors and spouse. During a divorce the court also determines the issue to do with maintenance, custody and access of minor children.

2. Customary Marriage

This type of marriage is governed and registered under the Customary Marriages Act [Chapter 5:07]. This marriage is potentially polygamous meaning a husband is allowed to have more that one wives. This however is not the same for women. A husband is allowed to sue for adultery damages if his wife is unfaithful whilst the wife cannot do the same. The marriage is registered at the Magistrates Court after payment of lobola. The marriage is also out of community of property hence the law that applies to a civil marriage in relation to property also applies. Parties to this marriage can upgrade to a civil marriage.

A customary marriage is dissolved by the Magistrates Court as provided for in the Magistrates Court Act [Chapter 7:10]. In terms of the Customary Marriages Act the dissolution of this type of marriage is governed by the Matrimonial Causes Act. The law that applies to a civil marriage upon dissolution also applies to this type of a marriage. The Magistrate Court also deals with the issues of distribution of property, maintenance, custody and access of the minor children.

3. Unregistered Customary Law Union (UCLU)

This is a customary law union where lobola is paid but parties do not register their marriage in terms of the law hence the name unregistered customary law union. It is commonly known as kuchaya mapoto. This type of marriage is also potentially polygamous. This type of marriage is not fully recognized by the law serve for the purposes of the inheritance, maintenance and a claim for loss of life support from a third party as per Chawanda vs Zimnat Insurance Co.Ltd.1990 (2) ZLR 143 S. This marriage becomes difficult to prove on the face of it because there is no marriage certificate unlike with the other types of marriages.

This type of union is not dissolved by the court hence the dissolution or separation is done customarily. In terms of this union a woman is only entitled to what is known as ‘mawoko” property which does not amount to much but a stove, utensils and linen. This undoubtedly brings grave injustice to women due to the modern day approach of marriages where women contribute financially to the acquisition of properties. However, parties may approach the court for distribution of property with resort to principles of law such as an unjust enrichment claim or sharing of property on the basis of an existence of a tacit universal partnership. It is difficult to prove this claim hence the need to engage services of legal practitioners. This marriage is however considered a marriage for purposes of inheritance thus once it is confirmed that the named individual had lobola paid they can qualify to be a surviving spouse for the purposes of inheritance.

The plight of the father of an out of wedlock child

Posted by nnlaw on with 0 Comment

The plight of the father of an out of wedlock child

I pay maintenance yet l am denied other rights over my child, like custody and access among others.

The position of the law in Zimbabwe is why elevate the legal status of an illegitimate father to that of a spouse in a divorce situation?

The rights of access, custody and guardianship of a child born out of wedlock are vested in the mother of the child. The father has no such rights, “the legal position is that in Zimbabwe custody rights in relation to a child born out of wedlock vest in the mother of the child, the father of such child is equated to any third party and as such the custody rights that vest in the mother can only be interfered with if the mother is not exercising such rights properly”.

Muchechetere in Cruth v Manuel expounded that, It therefore follows, in my view, that a father of a child born out of wedlock cannot come to court and simply allege that because he is the father of the child, or he is richer than the mother, or he pays maintenance etc, it is in the interests of the child that the rights of the mother should be interfered with.” The learned judge further expounded that it would be elevating the legal status of an illegitimate father to that of a spouse in a divorce situation and negating the accepted principle of law that he has no inherent right in the child born out of wedlock.”

Does this position help in the child’s development? Is it in the best interests of the child?

Sonia Fashi

CHILDREN’S RIGHTS IN ZIMBABWE

Posted by nnlaw on with 4 Comments

CHILDREN’S RIGHTS IN ZIMBABWE, AN ANALYSIS OF HOW THE STATE SEEKS TO PROTECT CHILDRENS’S RIGHTS.

This Article explores children’s rights as enshrined in the Constitution of Zimbabwe Amendment (No 20) Act of 2013. Zimbabwe has prioritized children’s rights, it adopted the Convention on the Rights of the Child and various laws have been passed in the recent years which protect children.

Before Amendment (No 20) of 2013 children’s rights were not set out in the Constitution of Zimbabwe. With Amendment (No 20) of 2013 we see children’s rights being set out in the superior law of the land. Children’s rights are now set out in section 19 of the Constitution. Section 19 (1) clearly sets out that the State must adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount. In section 19 (2) the State has undertaken to ensure that children enjoy family or parental care, or appropriate care when removed from the family environment , have shelter and basic nutrition , health care and social services, are protected from maltreatment, neglect or any form of abuse and have access to appropriate education and training .

Section 19 (3) of the Constitution which deals with child labour also compels the state to take appropriate legislation measures to protect children from exploitative labour practices and to ensure that children are not required or permitted to perform work or provide services that are inappropriate for the children’s age or place at risk the children’s age, the children’s well-being, education, physical or mental health or spiritual, moral and social development. With Section 19 (3) we see the State fighting against acts such as human trafficking and child prostitution were children are abused in order to obtain income to support families. In Africa we have high cases of child headed families were children are forced to support each other, this is because of the increasing rates of HIV/ AIDS.

If we take a look at our Maintenance law which is one of the most controversial topics to most men in Zimbabwe the State has protected children. The Maintenance Act [Chapter 5:09] has brought up so many changes which protect children, both parents have a duty to maintain their children. Under traditional customary law a father of a child who was born out of wedlock had no duty at all to maintain his child, in shona they said “ gomba harina mwana” this meant that even if a man impregnates a woman after the child was born the man had no duty to maintain his child. Nowadays maintenance has extended beyond formal recognized links to those who have created a relationship by reproduction for example if a married man impregnates his girlfriend and is sued for maintenance, whilst the man is legally liable to maintain the child that does not mean that both the married man and girlfriend are husband and wife. In Zimbabwe a child is supported up until he or she turns 18 years of age or becomes self-supporting.

In Zimbabwe a mother of a child born out of wedlock is entitled to recover lying in expenses from the father of the child these include maternity home and medical expenses, maternity clothing and clothes for the child as well as food. The expenses can only be claimed after the birth of the child this means that those who engage in illicit sexual intercourse risk children being fathered upon them.

Upon divorce or judicial separation children are protected from the conflicts between their parents. When a decree of divorce or judicial separation is granted by the High Court of Zimbabwe the court looks at the best interests of the child. Although custody is vested naturally by mothers, custody can also be granted to the father after taking into account the best interests of the child which are provided in section 4 of the Guardianship of Minors Act [Chapter 5:08]. The court looks at the age of the child, health, sex, educational and religious needs, social and financial position of the parties, character of parents, temperament, past behavior of parent to child. A parent who leads an immoral life is deprived of custody and a parent who travels a lot is deprived of custody too because children need the attention of parents and they need to be brought up under a good and religious background. A non-custodian parent is also granted access in terms of section 6 of the said Act this is meant to keep the natural bond between the child and the parent.

The Child Abduction Act [Chapter 5:05] which is international in nature is meant to safeguard the removal of children when a custodian parent wants to leave another country with the child. When parties fail to agree the High Court of Zimbabwe makes that decision for the parents since it is the upper guardian of the minor child. The Hague Convention on the Civil Aspects of International Child Abduction was adopted in Zimbabwe by virtue of Child Abduction Act.

With the Children’s Act [Chapter 5:06] the children’s court was established, provisions for the protection, welfare and supervision of children and juveniles as well as certain institutions and institutes for the reception and custody of children were established. The same Act also deals with issues of adoption of minors. Before the Children’s Act came into effect an adopted child could get married to the adopted parent if the child was over 18 years, nowadays marriage between an adopted parent and child is prohibited.

Criminal law has protected children against sexual offences that might be committed against them. Various acts of crimes are defined in Criminal Law (Codification and Reform) Act [Chapter 9:07] which attract heavy fines and custodial sentences. Section 87 of the Code states that anyone who allows a child to be a prostitute commits a crime, section 70 of the Code also penalizes adults who have sexual intercourse with minors or who perform indecent assaults on young people. It is not a defence that a young child consented to the act because at law children cannot consent to sexual acts. Section 49 of the Code also protects the right to life as enshrined in the Constitution anyone who within six months of the birth of her child and causes its death intentionally or by conduct realizes that there is a real risk to the child’s life shall be guilty of infanticide, abortion too is also prohibited. Section 94 of the Code also protects the rights of the girl child, any female custodian who hands over a young girl who is under the age of 18 as compensation of the death of a relative of another person known as kuripa ngozi and for a debt or obligation commits a crime. Although the State has made it an offence to have sexual intercourse or indecent acts with children offences such as rape, sodomy and indecent assault continue being committed by adults. The right to education and the right to health of children are still being violated due to religious grounds for example apostolic sects.

In conclusion the State has played a great role in the protection of children’s rights in Zimbabwe.