Cohabiting now legally protected

GUEST COLUMN Miriam Tose Majome 

SECTION 40 of the proposed Marriage Bill recognises and protects the rights of unmarried people in cohabiting relationships, known in Shona as kubika mapoto and colloquially as small houses.

For the first time in Zimbabwean law, civil partnerships have been formally recognised as bona fide institutions, adding an interesting and necessary dimension to the development of marriage laws.

This type of living arrangement has long been frowned upon and disregarded as immoral and a social and legal nonentity, but this will be a thing of the past if the Marriage Bill becomes law.

Men and women have always lived together, sharing lives, building families and acquiring property without formalising their relationships into customary or civil marriages.

For some, not getting married is out of choice, while for others it was just the way it had to be. Whatever a couple’s living arrangements, certain rights and obligations accrue to them as a result of that relationship, because they acquire property and have children. Traditionally, people who live together without being married have been discriminated against merely because of that and denied legal protection of their rights.

Since the Constitution was passed in 2013, this is now unconstitutional because Section 56(3) outlaws discrimination based on marital status. Changing the marriage laws was, therefore, necessary in order to align them with this provision.

In the Bill, civil partnerships are specified as only between men and women. Same sex civil partnerships are not recognised in Zimbabwe. It is key that the couple lives or has lived together for an amount of time in a sexual relationship in a genuine domestic arrangement, with a mutual commitment to sharing a common life.

The amount of time the couple would have lived together is not defined, so it is open to argument and perspective what the stated amount of time truly refers to as “living together”.

It is not the intention of the lawmakers to put civil partnerships on the same level with other marriage types, but only to protect the rights of civil partners regarding property and children when the partnership ends. Upon dissolution, property acquired during a civil partnership is distributed in accordance with sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13], the same provisions used to distribute matrimonial property during divorce.

Just like in a divorce, when a civil partnership ends, a court determining the distribution of property acquired during the partnership considers things like the duration of the partnership/relationship, the degree of financial dependence or interdependence, financial arrangements between the parties and ownership and acquisition of the property.

Accordingly, people who cohabit now also have the same property rights as those legally married, except in matters of inheritance.

It is important to note that protecting the property rights of parties in civil partnerships does not mean giving them automatic shares in the property acquired during the partnership.

Even in civil marriages, there is no automatic entitlement to a spouse’s property, let alone equal shares.

Parties in a marriage and civil partnerships have to prove their claims and entitlement to matrimonial and civil partnership property. Matrimonial and civil partnership property is distributed only on the basis of valid and proved claims.

The Zimbabwean marriage law is and remains out of community of property. It is possible and legal to leave a marriage or civil partnership of whatever duration with nothing, so married people and small houses should not be fooled by this new law. There is no automatic entitlement to someone’s property merely because you lived together in a romantic relationship.

Individual property rights are protected even in marriage and civil partnerships. Parties can buy and own their own property exclusively during marriage and civil partnerships.

For inheritance purposes, the property rights of married people and civil partnership parties differ. Civil partnership parties do not have the same inheritance rights as married people.

In terms of Section 3A, Deceased Estates Succession Act, only surviving spouses in a customary or civil marriage are entitled to inherit the matrimonial house and household contents.

As the law currently stands, in the event of death of one of the civil partners, the surviving civil partner will have to prove his or her entitlement to the property in order to inherit it. If the surviving partner cannot prove entitlement to any property left behind, it will be distributed in terms of a will left behind by the deceased partner.

If there is no will, it will be divided equally among the deceased’s dependants. If the surviving civil partner is officially regarded as a dependent and beneficiary in the deceased partner’s estate, he or she will share the estate property equally, together with any other beneficiaries.

The other significant aspects of the Bill are:

It proposes to merge and reconcile the Marriages Act (Ch 5:11) and Customary Marriages Act (Chapter 5:07) and confer equal property rights to parties of both respective marriages.
It repeals Chapter 22 of the Marriages Act, which had allowed child marriages. Sixteen-year-old girls had been permitted to get married under special consent. The minimum age of marriage is 18 and applies to both sexes, including civil and customary law marriages.

It will be a criminal offence with sanctions of up to five years imprisonment for anyone to facilitate or abet a child marriage.
Chiefs will have the powers of marriage officers

There is more than one version of the Marriage Bill available, but the most authentic one is accessible on http://www.justice.gov.zw/imt/wp-content/uploads/2017/11/Draft-MARRIAGES-Bill-Jan-2017-Final.pdf

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