Zimbabwe’s marriage laws, in so far as they affect indigenous Zimbabweans, are in a mess because the executive and legislature have failed to harmonise the conflicting systems of marriage laws. Prior to colonisation Zimbabweans had their own common law.
Although there were peculiar customs here and there, the basic laws of marriage were common among Zimbabweans.
Essentially, the intending spouses had to agree to get married; the father/ guardian of the woman had to consent to the marriage; roora/lobola had to be paid by the intending husband; after the marriage ceremony, the woman was delivered to her husband.
No registration of the marriage was required because writing was not part of Zimbabwean life.
After colonial conquest, with effect from June 10, 1891, Cecil John Rhodes and company imported Roman-Dutch law into the country and imposed it as the common law.
Our own common law was relegated and renamed customary law. With regards to marriage, two systems were allowed to co-exist, being the monogamous type of marriage requiring registration, and the potentially polygamous type of marriage between Africans, which, until January 1, 1951, did not require registration.
From January 2, 1951 onwards the customary law marriage was no longer recognized unless registered. This is provided for under section 3(1) of the Customary Marriages Act, Chapter 5:07.
However, the legislature recognised the folly of the failure to recognise an unregistered customary law marriage in toto for in section 3(5) of the Customary Marriages Act, Chapter 5:07 it recognizes the marriage for the purpose of the status, guardianship, custody and succession rights of children born in this marriage.
The above recognition, though, is wholly inadequate because the children remain illegitimate under general law. The father of the child born in this marriage cannot acquire a birth certificate or passport for the child without the consent of the mother, and neither can a mother register the child in the father’s name without the consent of the father.
This absurdity comes out clearly in the 2003 case of Katedza v Chunga & Another 2003 (1) ZLR at page 470, wherein the mother of children born in the unregistered customary law marriage was able to change the children’s surname from that of the father to her own, and was allowed by the High Court to acquire new birth certificates for the children without the father’s consent. The judge ruled that whilst section 3(5) of Customary Marriages Act, Chapter 5:07 says that the children born out of this marriage are legitimate, this is for customary law purposes only, not for general law purposes. Consequently, the High Court ruled that children born in an unregistered customary law marriage are illegitimate for general law purposes and all rights over the child are with the mother.
The legislature has continued with its patchwork on Zimbabwean marriage laws. In section 16 of Customary Law and local courts, Chapter 7:05 it grants jurisdiction to community courts (presided over by chiefs) to adjudicate in disputes arising out of unregistered customary law marriages. At the same time, because this is not a marriage, according to section 3(1) of the Customary Marriages Act, Chapter 5:07, Magistrates Courts and indeed the High Court have no jurisdiction to dissolve this marriage. So what happens when a litigant approaches the community court seeking divorce and is not satisfied with the decision of the Community Court? Can he/she appeal to the Magistrates’ Court? Or is there no right of appeal from the Community Court?
Another legislative patchwork is found in section 68 of the Administration of Estates Act, Chapter 6:01 which recognises an unregistered customary law marriage as a marriage for intestate succession purposes, in other words where the husband dies without leaving a Will. As a result of this, the widow or widows, if deceased had more than one wife, can inherit. However, if the deceased left a Will, and he did not provide for the widow, she loses! She does not get the protection of Section 16 of the Wills Act, Chapter 6:06. This is so because, according to Justice Mawadze in the case of Magedi&Anor v Samuriwo&Ors reported in Zimbabwe Law Reports, 2014 (1) page 524, the unregistered customary law marriage is not a marriage for purposes of invalidating a WILL made by the deceased in an earlier marriage, when he/she remarries. He also had this to say about the unsatisfactory state of Zimbabwe’s marriage law as they affect women in unregistered customary law marriages:
“Despite the progressive legislative provisions enacted since independence and positive judicial activism, the legal disabilities suffered by women who opt to marry under the unregistered customary law marriage remain in the various spheres of our law. As an example, the Matrimonial Causes Act [Chapter 5:13] is not applicable in relation to such unregistered customary law marriages as such women would have to find some cause of action under general law if they are to benefit from matrimonial estate outside ‘maoko property’ at the dissolution of such a union”.
The same section 68 of the Administration of Estates Act, Chapter 6:01 protects marriages contracted under the Marriage Act, Chapter 5:11 to the detriment of the unregistered customary law marriage.
It provides that if the first wife of the deceased was married in an unregistered customary law marriage, and the deceased subsequently married a second wife under the Marriage Act, Chapter 5:11 the subsequent marriage will be recognised and be regarded as an unregistered customary law marriage.
By Godwills Masimirembwa
Zimbabwe Institute of Legal Studies