The Undefined Path: Dissolving Unregistered Customary Marriages Under Zimbabwe's Marriages Act 2022
By Urayayi Chikwetu(Lawyer|LLM(UZ)|LLB (SA) |Mudzidzi|Writer)
Introduction
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 in dissolution and sharing of property upon dissolution. However this article will only discuss the dissolution of this union .There is no clear path provided for in law as to how this unregistered customary marriage can be dissolved .Thus the focus is specifically meant to demonstrate how the absence of a procedure for dissolution of the union is a problematic , while future articles will focus on why the absence of a procedure to distribute property after dissolution is a problem and the options available to the parties.
Absence of a Rule on Dissolution of Unregistered Customary Marriage
The marriage Act has not provided a procedure for the dissolution of an unregistered customary marriage. The parties can not file a case in a general law court for its dissolution. Section 45 of the Act is clear on this and reads follows:
Subject to this Act, no marriage solemnised or registered or deemed to be solemnised or registered in terms of this Act shall be dissolved except by order of court of competent jurisdiction in terms of the Matrimonial Causes Act [Chapter 5:13].
The jurisprudence of our courts demonstrates unshakable fidelity to this position. In the case of Mukonde v Zengeni[2], a Magistrate court's decision that had dissolved an unregistered customary marriages was set aside confirming that unregistered customary marriages cannot be dissolved by a court order.
Gupuro as an Avenue for Dissolution
The question that continues in people’s minds is whether the parties in an unregistered customary union are totally without an alternative to end .Though it has been pointed out by some authors that under customary law, a man can divorce his wife by handing a gupuro to her ,known as divorce token, however no agreement exists on whether a woman can do the same.[3] The absence of a well-defined procedure robs a women in this union of their agency when it comes to deciding whether or not to stay in a marriage.
Potential impact of the Absence of Avenue for Dissolution
While a legal system cannot be expected to enable the parties to separate happily or to have a good post-separation relationship, the law must not exacerbate bitterness between parties.[4] Failure by the Act[5] and the legal system to provide a clear law on how the parties in an unregistered customary marriage can dissolve their union creates a fertile ground for disagreements and bitterness between the parties. This imposes a burden of emotional harm on spouses in this union. This law infringes the right to equality . The Constitution[6] provides all persons are equal before the law and have the right to equal protection and benefit of the law. This according to Ackerman[7] means that the law must protect and be of benefit to all people equally. The spouses in unregistered customary marriage are excluded from the protective umbrella of the law. Equally they are denied the right to equal benefit of the law, that is a benefit of a certain and orderly dissolution of their union as is afforded other marriages. An amendment to the Act is therefore recommended to provide the manner in which this union can be dissolved.
Conclusion
It has been shown that the procedure for the dissolution of unregistered customary marriage is not provided in the Marriage Act and this may cause emotional harm on the parties since there is no certainty as to path to follow to legally end the union. More so , the article has demonstrated that the law infringes the equality clause hence the recommendation for its amendment .
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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] Mukonde v Zengeni HH 133/11.
[3] Vengesai P “The rights of women in unregistered customary marriages in Zimbabwe: Best practices from South Africa”(2024) Vol(28) Law, Democracy &Development 215-236.
[4] Herring J Family law (Pearson Edinburgh 2015) 138.
[5] Marriages Act (Chapter 5:17).
[6] Section 56(1) of The Constitution of Zimbabwe ,2013.
[7] Ackerman LWH “Equality and non-discrimination: Some analytical thoughts” (2006) 22(4) South African Journal on Human Rights 597-611.