UNDERSTANDING PROPERTY RIGHTS IN MARRIAGE IN THE  ZIMBABWEAN CONTEXT: THE NEW MARRIAGES ACT: CHAPTER 5:17

 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.

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