Marriage

Introduction

When a person gets married their status changes, and this has an impact on their rights and duties in relation to their spouse, as well as the community.  Although not mandatory, the wife is entitled to take up her husband’s name if she so wishes.  The wife acquires her husband’s domicile, which she continues to follow as a domicile of dependence during the marriage.  She remains a national of her country of origin.  Relationship by affinity is created between each spouse and the blood relatives of the other.  A right of intestate succession arises between the spouses, as well as a reciprocal duty of support.  Marriage establishes a life of community, which obliges the spouses to live together, afford each other marital privileges, and be faithful to one another.[1] 

This article seeks to provide an understanding of the different types of marriages governed by Zimbabwean Law.

Marital Regime

A marital regime is a set of rules that automatically apply to persons when they get married.  These rules govern how money and assets are to be dealt with during the subsistence of the marriage, and at the dissolution of the marriage.  A sad reality is that most people only find out what regime governs their marriage at the end of their marriage.  Since 1st January 1929 all marriages solemnised in Zimbabwe fall under the marital regime known as Out-of-Community of Property and Out-of-Profit and Loss, with the exception of persons who opt not to follow this regime, and do so by properly executing antenuptial contracts, also known as prenuptial or a premarital contracts.[2] 

Antenuptial or Premarital Contracts

An antenuptial, prenuptial or premarital contract must be executed properly for it to be recognised at law. The Married Person Act provides that proper execution entails having the contract in writing in the prescribed format, stating precisely the allocation of property that must be adopted by the spouses after marriage, signed by both spouses in the presence of two witnesses, prior to the solemnization of their marriage, and one of the witnesses must be a Magistrate, who must state on the contract that he or she is a Magistrate.  Thereafter, a notice of the contract must be published in the Government Gazette within 28 days of signing, before it can be registered with the Registrar of Deeds.  Failure to have the contract registered renders it invalid and of no cause and effect.  Lastly spouses must pay a statutory fee upon registration.[3] 

It is worth noting that these contracts work inversely in Zimbabwe as opposed to most countries.  In most countries they act to separate spouses’ estates, whereas in Zimbabwe they act to merge spouses’ estates.

Marriages In- or Out-of-Community of Property and of Profit and Loss

For marriages Out-of-Community of Property and Profit and Loss, assets and properties acquired by one spouse before the marriage remain as the spouse’s personal property, which he or she has real rights over and is at liberty to do as he or she pleases with it, including pledging, selling, donating or ceding such property without out the knowledge or consent of the other spouse.  The same is true for assets and properties acquired by one spouse during the subsistence marriage, with exception of only assets and properties registered in both spouses’ names. 

On the contrary, marriages In-Community-of-Property and of Profit and Loss, spouses in the marriage own and control property in equal shares.

Marriages that are recognised in Zimbabwe

The Marriage Acts (Chapter 5:17), which repealed the Marriage Act (Chapter 5:11) in May 2022, takes cognisance of the following unions: Civil Marriages, Registered Customary Law Unions, Unregistered Customary Unions, Qualified Civil Marriages and Civil Partnerships.  

Civil Marriages

Zimbabwean law recognises both civil and customary marriages.  A civil marriage is one that is monogamous by nature and is dissolved by either death or divorce.  It is contracted between one man and one woman. The Constitution of Zimbabwe and the Marriages Act prohibit same-sex marriages, that is to say, a marriage between a man and a man or a woman and a woman is forbidden at law.   During the subsistence of the marriage, neither spouse may enter into a similar contract or contract any other marriage with another person.  The marriage is performed, recorded and solemnised by a licenced marriage officer, including Magistrates and religious or traditional leaders who are licenced.

Customary Marriages

A customary marriage is one that is potentially polygamous in nature.  It is contracted between a man and a woman, with the man having the right to enter into similar marriages with other women.  It is solemnized, governed and guided by the customary law of the spouses, with regards to the payment of a bride price known as roora or lobola, which is paid by the groom to the bride’s family.  A customary marriage may be dissolved by death or divorce, although divorce in the African culture is shunned upon. In the Shona culture, divorce is signified by the husband giving the wife a divorce token, known as gupuro.

Qualified Civil Marriages

A qualified civil marriage is one that is a union between a man and a woman solemnised in terms of religious procedures that the marriage officer, as well as the man and woman, practice. This marriage is potentially polygamous, or polygamous, and must be registered in a separate registration book from civil marriages by the marriage officer.

Civil Partnerships 

In terms of section 41 of the Marriages Act, a civil partnership is a relationship between a man and a woman who are both over the age of 18 years, who have lived together without being legally married to one another, who are not related, and have a relationship as a couple living together on a genuine domestic basis. In terms of the Act, this relationship is not recognised as a marriage, it is only recognised as a civil partnership for the purposes of determining the rights of the parties upon dissolution of the relationship.

In the matter of Melo v Kandibero[4] a couple in a what the Court considered to be a tacit universal partnership, were dissolving their relationship.  The woman was claiming 50% of the value of the couples’ stand, as well as the full value of one of the vehicles both acquired by the couple during the subsistence of their relationship.  The woman was awarded what she was claiming. The Court’s attitude in this matter was to acknowledge the indirect contributions of the wife by looking after the family and the home, washing, cooking, cleaning, looking after the children, performing wifely duties including providing the man’s physical and emotional needs.  The Court highlighted that this type of work requires intensive labour, is time consuming and vital to family life.  The Court also took cognizance that the wife’s income earning capacities were fundamentally affected by child birth and child rearing, as opposed to the husband who had time to invest in his earning capacity.  The Court went on to make reference to the matter of Marange v Chiroodza[5] in which the Court held that;

“The legal rights and obligations created by marriage include community of life and maintenance of one common household.  This is an invariable consequence of marriage.  As such, the parties contribute in their different roles to the successful running of their common household.  The common estate may be built by the industry of the husband and the thrift of the wife, but it belongs to them jointly as one could not have succeeded without the other.  As van der Heever put it in Edelstein v Edelstein NO & Others, the husband could not have successfully conducted his trade if his wife had not cooked dinner and minded the children.  It is on this basis that I hold that there existed a tacit universal partnership between the plaintiff and the defendant in the above matter.”

The requirements of a tacit universal partnership were laid down in the matter of Mtuda v Ndudzo[6] as being that the parties must bring something into the partnership or must bind himself or herself to bring something into it whether money, labour or skill.

In the leading cases of Usayi v Usayi[7] and Mhora v Mhora[8] the Supreme Court recognised the important role of a wife’s indirect contributions by giving the woman in each case a significant, if not equal share of the property under dispute.

Dissolution of marriages in Zimbabwe

In granting a decree of divorce, judicial separation or nullity of marriage, an appropriate court is given the authority by the Matrimonial Causes Act (Chapter 5:13) to make an order with regard to the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other.[9] 

In making the order, the court takes into consideration various factors including, whether the couple was married in or out of community of property.  If in community of property the matrimonial property is divided in equal shares between the spouses.  If out of community of property, then each spouse retains the property that they owned individually before the marriage, as well as what they bought and registered in their individual name during the subsistence of the marriage. The Court has no authority to distribute property inherited by a spouse, or what a spouse possesses in terms of custom, or what has sentimental value to a spouse, these items are exempt from distribution by the court. 

All the other property that the spouses acquired during the subsistence of the marriage even during separation, before a decree of divorce has been granted, is regarded as matrimonial property, and is divided between the two spouses with due consideration by the court. The factors taken into account by the court to ensure a division of assets which is just and equitable include the income-earning capacity of either spouse, the assets and other financial resources which each spouse is likely to have in the foreseeable future, the financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future, the standard of living of the family, the age, physical and mental condition of each spouse, the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties, the value either spouse will lose as a result of the dissolution of the marriage viz pension or gratuity, and the duration of the marriage. In deciding on the division of assets, the Matrimonial Causes Act mandates the court to endeavour as far as is reasonable and practicable, to place the spouses in the position they would have been, had a normal marriage relationship continued between them.  However, each case is decided on its own merits, there is no uniform formula for all cases.

Court Cases

In decided cases, the courts have ruled in line with the Matrimonial Causes Act, as was the case in the matter of Ncube v Maglazi[10], where it was held that;

“It is now trite law that a spouse's contribution should not only be confined to tangibles, but intangibles as well.  It is now settled law in our jurisdiction that our courts will not hesitate to lean in favour of women on the principle of unjust enrichment, all in the spirit of law development and justice.”

The same was true for the case of Sithole v Sithole[11] in which the court held that even if a wife made only indirect contributions, she cannot leave empty-handed merely because she did not contribute financially towards the acquisition and development of the matrimonial home. The indirect contributions in the long marriage of 10 years could not be overlooked. The wife in this case was awarded a 40% share of the property.

Another glimpse at case law echoes the same sentiments as was the case in the matter of Makani v Makani[12] where it was held that,

“It seems to me that a proper interpretation of this provision allows a court, in making an award, to take into account all the property acquired by the parties whether before or during the marriage provided that it does not fall in the exceptions outlined in the section. I take this view because section 7(4) of the Matrimonial Causes Act does not just look at the question of contributions when a court is called upon to distribute property upon divorce. The court is enjoined to take into account all the factors which are set out in subsection 4 and then make an equitable distribution. Clearly it was the intention of the legislature to include all the property owned by the parties. The whole thrust of section 7 of the Matrimonial Causes Act is to place the parties as far as is reasonable and practical in the position they would have been had the marriage relationship continued between them. A property may only be excluded from consideration if it was inherited, acquired in terms of custom or it is of sentimental value to a party. The plaintiff has not sought to rely on any of these exceptions. His only argument was that he acquired the property prior to his marriage to the defendant. That in itself is not in my view sufficient and all property proved to belong to the plaintiff would fall for distribution in terms of section 7.”

Conclusion

This article has considered the various marital regimes under Marriage Acts (Chapter 5:17) of Zimbabwe, such as Civil Marriages, Registered Customary Law Unions, Unregistered Customary Unions, Qualified Civil Marriages and Civil Partnerships. The article has also considered antenuptial contracts, marriages In- and Out-of-Community of Property and Profit and Loss, as well as the dissolution of marriages in Zimbabwe.

[1] PQR Boberg, The Law of Persons and the Family, Pg 182 -183, Juta (1977)

[2] Section 2 Married Persons Property Act [Chapter 5:12]

[3] Section 3 – 4 Married Persons Property Act [Chapter 5:12]

[4] (323 of 2023) [2023] ZWHHC 199 (24 May 2023)

[5] SC 39 of 2004

[6] 2000 (1) ZLR 710 (H)

[7] [2024] ZWSC 22

[8] [2022] ZWCC 5

[9] Section 7(1)(a) Matrimonial Causes Act [Chapter 5:13]

[10] [2011] ZWBHC 77

[11] [2011] ZWHHC 155

[12] [2010] ZWHHC 74