A Legal Void: Property Division in Zimbabwe's Unregistered Customary Marriages Post-2022
By Urayayi Chikwetu
Zimbabwe's Marriages Act [1] of 2022, while aims to modernize and unify marriage laws, apparently perpetuates a significant injustice against spouses in unregistered customary marriages, especially sharing of property upon dissolution. The law is silent as to how the properties of the parties to the union can be equitably distributed upon dissolution. The article will demonstrate how the absence of a path to be followed to share property upon dissolution of the union is a burden. Further the article will offer possible avenues to resolve the distribution of property upon the dissolution of the union.
Absence of a Rule on Division of Property on Dissolution of Unregistered Customary Marriage
While acknowledging customary marriages, the central issue is that the Act prioritizes registered marriages when it comes to the division of matrimonial property upon dissolution. This means that women or men in unregistered customary unions, despite contributing to the acquisition of family properties, are excluded from the equitable distribution criteria provided in the Matrimonial Causes Act[2] when the marriage is dissolved.
Section 17(3) of the Marriages Act reads as follows:
“Failure to register a marriage contracted at customary law does not affect the validity of the marriage at customary law with respect to the status, guardianship, custody and the rights of succession of the children of such marriage.”
This entails that while the Act recognises a customary law marriage, when unregistered, such a marriage is valid only in respect of the instance enumerated in it. Put in other terms, unregistered customary marriage is a marriage only when dealing with the status, guardianship, custody and the rights of succession of the children of such marriage and hence it is not a lawful marriage for any other purpose such as division of property when the marriage is dissolved. This leaves the spouses without a law that guide them on how to equitably share their property after dissolution .The process for dissolution of marriages and other ancillary matters are expected not to result in unnecessary expenses for the state or the parties[3] .The spouses are inevitably forced to search for a solution to an unavoidable problem related to how the property accumulated during the subsistence of their union must be shared or distributed between them in the absence of a clear legal guidance from the legal system. This may lead to disagreements between the parties which clog the courts with many unresolved cases as well as costs to the parties.
Although these problems are pointed, are the parties completely denied a way to resolve the issue of property division? The next section will answer the question.
Avenues for Relief: Unjustified Enrichment and Tacit Universal Partnership
While the Marriage Act presents significant hurdles, spouses in unregistered customary unions are not entirely without recourse. Two key legal principles offer potential pathways to claiming a share of matrimonial property.
Unjustified Enrichment
This legal doctrine addresses situations where one party has benefited unfairly at the expense of another. A spouse can argue that his or her contributions, whether financial or through domestic labour, have unjustly enriched her partner. To succeed in a claim based unjustified enrichment the following requirement set out in the case of Mautsa v Kurebgaseka[4] must be met:
a) the defendant must be enriched.
(b) the enrichment must be at the expense of another, in that the plaintiff must be impoverished and there must be a causal link between the defendant’s enrichment and the plaintiff’s impoverishment.
(c) the enrichment must be unjustified.
(d) the case should not come under the scope of one of the classical enrichment actions; and
(e) there should be no positive rule of law that refuses an action to the impoverished person
This is avenue is found in common law and is a technical area that lay persons may not be able to comprehend. The Legislature out to have provided a clear path to be followed by parties in this union thereby lessening the burden on them.
Tacit Universal Partnership:
This requires proving that both parties implicitly agreed to pool their resources and efforts for their joint benefit. In the case of Nyanhongo v Masvosva & Other[5] the court stated that a tacit universal partnership exists where the following is present:
(a) Each of the parties brought something into the partnership.
(b) The business or acquisition of the property is carried on for the joint benefit of the parties. The object of the partnership must be to make a profit and
(c) The contract should be legitimate one.
This is a difficult standard to meet, as it requires demonstrating a shared understanding and intent, often without formal documentation.[6] It is vital to gather any evidence possible, such as bank statements, receipts, witness testimonies, and any other evidence that proves contributions were made.
Conclusion
It has been shown the article that the Act does not provide for an equitable criterion for sharing property upon the dissolution of the union. At the same time the article has also shown that unjustified enrichment and tacit universal partnership may be used as cause of action for the division of property upon dissolution of the union. Both unjustified enrichment and tacit universal partnership claims require strong evidence and legal skills. The burden of proof falls heavily on the spouse who has filed a claim, making it a challenging process. These legal avenues, while offering a potential remedy, do not fully address emotional harm and costs imposed on the parties due to the absence of law governing the distribution of property upon dissolution of the union.
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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult your legal practitioner or your lawyer for specific guidance.
[1] Marriages Act (Chapter 5:17).
[2] Matrimonial Causes Act (Chapter 5:13)
[3] Herring J Family law (Pearson Edinburgh 2015) 138.
[4] Mautsa v Kurebgaseka (HC 9814 of 2011; HH 106 of 2017).
[5] Nyanhongo v Masvosva & Other HH 416/23.
[6] https://mahembeattorneys.org/2025/02/12/the-road-to-social-justice-under-the-2013-constitution-the-constitutionality-of-section-173-of-the-new-marriages-act-chapter-1517-by-mvn/ (Date of Access: 13 April 2025)