By Chipo Mahlangu*
1. Background
1.1. On the 27th May 2022, the President of Zimbabwe passed into law a new marriages law, the Marriages Act [Chapter 5:17]. It came into operation on the 16th September 2022.
The new marriages regime consolidates the laws relating to marriages, introduces a qualified civil marriage, provides for the recognition and registration of customary law unions, and provides for the recognition of civil partnerships.
Various related Acts such as the Matrimonial Causes Act [Chapter 5:13] will also be amended by this new law.
1.2. The previously recognized types of marriages were the Customary Marriages Act [Chapter 5:07] (the registered customary law marriage and potentially polygamous), the civil marriage under the Marriage Act [Chapter 5:11] (monogamous, i.e., it allowed a husband to marry only one wife and the unregistered customary law union which was
recognized only for limited purposes such as maintenance of the child and inheritance. All the traditional and cultural rites of marriage would have been followed, but the marriage would not have been formally registered.
The new Act repeals the Marriages Act [Chapter 5:11] and the Customary Marriages Act [Chapter 5:07]. All marriages are entered into between men and women above 18 years of age. The major highlights are discussed herein below:
2. TYPES OF MARRIAGES
The Act expressly provided that all marriages registered in terms of this Act are equal and parties to any marriage have equal rights and obligations during the subsistence, and at dissolution of the marriage.
2.1. Civil Marriage
This is a monogamous marriage i.e., a lawful union of two persons to the exclusion of all others. One cannot contract into any other marriages as this will constitute bigamy which is a criminal offense. However, either party may enter a civil partnership. Payment of lobola is not a requirement.
2.2. Registered Customary law marriage
This can be polygamous or potentially polygamous. However, no person can be married under the general law and customary law at the same time.
During the subsistence of the marriages in question property rights apply almost uniformly. This marriage can be converted to a civil marriage if the husband has no other existing spouse in polygamy.
Once registered, the civil marriage will supersede the previous customary law marriage. Payment of lobola is a requirement.
2.3. Unregistered customary law union
This can also be polygamous or potentially polygamous. It is contracted solely according to customary law and not solemnized in terms of the Act. Payment of lobola is a requirement.
The Act provides, however, that same should be registered within three months of the date the union was entered.
On the other hand, failure to register a marriage contracted at customary law does not invalidate it.
It is still recognized in respect of its status, guardianship, custody, and the rights of succession of the children of such marriage.
2.4. Civil Partnership
This refers to a relationship between a man and woman, 18 years of age and above, who live together without being legally married, customarily (without payment of lobola) or in terms of the civil law.
They two should have a relationship as a couple living together on a genuine domestic basis. (“small houses, kubika mapoto”) Either of the parties or both may be legally married elsewhere or may be just boyfriend and girlfriend living together.
It is important to note that this is not recognized as a marriage. It is only recognized for the purposes of determining rights and obligations of parties upon dissolution of the relationship.
Section 7-11 shall apply on the dissolution of any such relationship. Bigamy shall not apply to the parties in question by virtue of the partners dissolving their civil partnership.
3. PROPERTY RIGHTS DURING THE SUBSISTENCE OF THE MARRIAGE
3.1. Since 1929 marriages in Zimbabwe are out of community of property. Spouses in a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.
If a spouse has an immovable property registered in his or her name, be it the house used as the matrimonial home, he or she can sell it at any time
without consulting anyone. This however may not be done pending divorce proceedings as the other party may apply for an interdict.
They can also dispose or give it to any person of their choice by will to whomever he or she chooses.
3.2. This right is one of the rights constituting ownership of property. It is not correct to assert that a spouse, by virtue of a marriage, is entitled to own property that is owned and registered in the name of the other spouse.
A marriage contracted out of community of property does not afford such rights. A spouse married out of community of property can deal with property in any way he or she wishes including alienating his or her rights therein or encumbering such property.
4. DISPOSING OF PROPERTY BY WILL
4.1. The Wills Act does not require a husband or wife to bequeath his or her property to the surviving spouse.
A valid will cannot be set aside because one thinks that the testator ought to have bequeathed his or her property to the surviving spouse.
The law of wills imposes an obligation on all who deal with the deceased’s property, including the surviving spouse, to give effect to the intention of the deceased regarding the disposition of his or her property as expressed in a valid will.
4.2. The right of every person to freely dispose of his or her property is a fundamental right for every person regardless of gender enshrined in section 71(2) of the Constitution.
4.3. Thus, the type of marriage will not be relevant in this regard. One may even give his or her property to any other person they are not married to under a Will.
5. Disposing of Property upon death where there is no Will
5.1. If a person dies intestate (i.e without executing a Will) his/her estate (property) is administered and distributed in terms of the Administration of Estates Act [Chapter 6:01] and the Deceased Estates Succession Act [Chapter 6:02].
5.2. Where there is only one person claiming to be the surviving spouse and where there are children born only from that monogamous marriage,
the process is not complicated. The beneficiaries are the surviving spouse and the children. If more than one person claims to be the surviving spouse, the Claimant need to prove that indeed they were married to the deceased.
5.3. Any person who was married to the deceased at the time of his/her death in terms of any of the three types of marriages is on the face of it the deceased’s surviving spouse.
5.4. If parties were married in terms of the Marriage Act in terms of the civil marriage, they cannot enter another valid marriage, be it civil or customary during the subsistence of the marriage.
Otherwise, the subsequent marriages are deemed null and void. Only the civil union spouse will be deemed the sole surviving spouse and will inherit the property from the deceased.
The same applies even if the civilly married parties had separated (but not divorced).
5.5. If the deceased was married in terms of the customary law and subsequently enter a civil marriage with a third party, for purposes of inheritance both spouses will be treated equally.
6. DISTRIBUTION OF PROPERTY UPON DIVORCE
6.1. Distribution of assets (including immovable property) at the dissolution of marriage (divorce) and now of a civil partnership is governed by section 7 of the Matrimonial Causes Act [Chapter 5:13]
The distribution must be just and equitable and generally the issue of ownership of the property in question has not been on its own a determining factor precluding the courts from awarding the property to either spouse.
6.2. Division of immovable matrimonial property between a divorcing couple/ civil partnership is made by courts irrespective of whose name the property may be registered. The court considers direct and indirect contributions made by the parties. This only applies to all marriages and civil partnerships.
7. CONCLUSION
7.1. Spouses in a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.
A spouse during the subsistence of their marriage can dispose of his or her property without seeking consent from the other partner. It is also now settled that a spouse desirous to dispose of his or her estate by will may do so with no obligation at law requiring him or her to bequeath same to the surviving spouse.
The issue of marriage is only relevant in circumstances of intestate succession, (where the deceased died without executing a Will) and on the division of matrimonial property between a divorcing couple.
7.2. It is against this background that spouses are encouraged to register Family Trusts with the Deeds Registry so that their contributions and interests are protected.
It is also advisable to do joint wills and finally whilst it may still be problematic spouses are also encouraged to ensure their properties are jointly owned.
*Chipo is a practicing Attorney, Conveyancer and Notary Public registered with the Law Society of Zimbabwe with vast experience in dealing with Commercial Law, Family Law, Constitutional Law and Property Law matters. She is also the past Chairperson of the Law Society of Zimbabwe Compensation Fund.
Chipo is a registered Estate Administrator with the Council of Estate Administrators and Insolvency Practitioners of Zimbabwe.
She can be contacted on +263 776 359 635 or email: chipo@mmattorneys.co.zw or chipo.mahlangu@yahoo.com
*The information set above is by way of guidance. Specific advice should be sought in all cases.