guest column Miriam Tose Majome
THE majority of married Zimbabweans are in marriages which are not legally valid.
This is because they do not register their customary law marriages as required by the law.
The invalidity of their marriages is a fact barely known, let alone understood and appreciated by the majority of parties in those unregistered marriages. Because of the invalidity, parties in unregistered marriages have no marriage rights.
The lack of marriage rights affects both parties negatively, but women much more than men.
This legal vacuum is what the much-maligned Section 40 of the Marriage Bill was attempting to address, but it was understood and accused of trying to wreck marriages by ‘allowing’ extra marital affairs. Putting it plainly, the majority of Zimbabwean marriages are ironically civil partnerships as described in the Bill – the very monster the nation went into a catatonic frenzy to denounce until its hasty withdrawal by Cabinet two weeks ago. Even more ironically, women married in these legally invalid marriages celebrated and danced its withdrawal without realising they were ululating away the very thing that wanted to give them marriage rights. They believed they had stopped ‘small houses’ in their tracks, yet the real issue was not about that at all. Talk about missing the wood for the trees. In Shona, the closest could be kupemberera n’anga neinobata mai huroyi (cheering on a witch hunter without knowing he will snare your own mother).
ZimStats data show that at least 58% of Zimbabweans aged 15 and above are married. Marriage can be any of the three formally recognised types, namely civil marriages (Chapter 5:11 formerly Chapter 37), registered customary law marriages (Chapter 5:07) and unregistered customary law marriages. There is also the very common and increasingly popular cohabitation. Of the three formal types, the unregistered customary law marriage is the most common. Women’s rights groups estimate the rate at about 70% of all marriages in the country.
An unregistered customary marriage is, quite simply, when a couple marries by full or partial observance of the customary marriage rites as required and negotiated between the parties’ families. Customary marriage rites always include the rendering of some material benefit by the man to the woman’s family and the performance of various customary obligations by the parties. Customary rites can be as elaborate or as minimal as the parties and circumstances dictate,
but the outcome must be the consensus that a marriage took place between the man and the woman. Upon full or partial fulfilment of the customary marriage
rites, the couple is permitted to live together as husband and wife and their union recognised as a marriage by their families and community at large. The
couple does not register the marriage with a government marriage officer, so it is not recognised as a valid marriage under the general law. Therefore, the
rights of marriage do not apply to unregistered marriages except in a very few limited circumstances. Unregistered marriages are only valid for custody and
guardianship of minor children and succession rights in their parents’ estates.
At law, all marriages are supposed to be registered for them to be valid (Section 3 Customary Marriages Act). A marriage is deemed valid only if it has been
solemnised through registration. After performing customary rites, the couple has to appear before a marriage officer, usually at Civil Magistrates Courts, to
formally register their customary marriage and be issued with a marriage certificate in terms of Chapter 5:07. Only after registration does the couple accrue
the rights of marriage. The man has a right to marry other women because customary marriages are potentially polygamous. Both parties acquire protection of
property rights in the marriage. However, the majority of married couples, that is 70 %, do not bother with registration after their families allow them to
live together openly. Only a minority of couples later choose to ‘upgrade’ their customary marriages to civil marriages at court or church and validate their
customary marriages. Most married people, out of ignorance, are not aware that registration is a legal requirement and that it is for their own good so that
they acquire marriage rights and legal statuses. Some, especially men, are fearful and superstitious and some wilfully refuse to register in order to avoid
empowering their wives.
Government is remiss by failing to educate and encourage the registration of customary marriages. Also, its failure to implement the fine penalties in the Act
is the biggest barrier to registration. So, because nothing adverse happens, the majority carries on in marital bliss even for decades, totally unaware that in
terms of the law, they are not really married. Trouble comes when the union hits troubled waters and the couple has to go separate ways. It is only in times of
marital distress that the reality of the invalidity of unregistered marriages dawns on most couples, especially women. Usually, the woman finds that she has no
rights to enforce. Almost always, unless she gets professional legal advice, she stands to lose everything she has toiled and worked to acquire for the benefit
of the marriage for many years. Under customary law, women have negligible entitlement to matrimonial property.
So, how was Section 40 going to help people in legally invalid marriages, in other words, civil partnerships? The clause had proposed to make all classes of
marriages equal as far as rights during dissolution are concerned, so that no party loses out. All marriages and civil unions were going to be subject to
Section 7-11 of the Matrimonial Causes Act, which currently applies only to civil marriages and registered customary marriages. Section 40 was going to
equalise the rights of married people regardless of the type of marriage or union, including cohabitation. It was not going to take away the rights of people
married in monogamous unions and no one was going to be forced to share their property with a small house. Section 40 complied with Section 56(3) of the
Constitution, which outlaws discrimination on the basis of marital status. What this simply means is a couple married under Chapter 5:11 or a registered customary marriage seeking dissolution of the union can apply for distribution of matrimonial property on the grounds of marriage.
It must be noted and reiterated that all marriages in Zimbabwe are out of community of property and there is no automatic equal distribution – the 50/50 myth. A court will distribute property according to the evidence at hand. Currently, upon dissolution of an unregistered customary law marriage, property is not distributed on the basis of marriage as the marriage is not valid. The party claiming entitlement will have to rely on other remedies within the general law such as unjust enrichment or tacit universal partnership, which are very hard to prove unlike simply claiming under the same Matrimonial Causes Act that validly married people use as had been proposed by Section 40. But, alas, women will now find themselves in the same place they have always been.