Irene Sithole
In Zimbabwe, there are many people who get married by performing customary law rites which include lobola payment but they do not go further to formalise their marriages through registration. There is a legal challenge with such arrangements in that the law only recognises them as marriages in very few circumstances. Such circumstances include inheritance and the legitimacy, guardianship, custody and maintenance of the children born in such unions.
However, in the crucial area of property distribution in the event of a divorce, the law in the form of legislation is silent on how this should be done where a couple has a customary law union. This position exists despite the fact that the issue of how property acquired during the subsistence of a marriage should be shared is one of the main contentious issues warranting the intervention of the courts. The good news for couples in these customary law unions is that the courts have exercised their right of judicial activism and there are now some legal principles which can be applied to ensure that there is a just and equitable distribution of the property of parties who have a customary law union.
It is however very important to note that these principles, which are the subject of discussion in this article, do not automatically apply because one has a customary law union. The party that is the spouse who wants them to be applied has to prove their existence in his/her particular case. First and foremost, when a couple decide to enter into a customary law union, it is assumed that they want customary law to be the system of law that applies to them in the event of a divorce or any other disputes which may arise between them.
For this reason, such unions are dissolved in terms of customary law under which a spouse who is being divorced is given a token of rejection called gupuro in Shona. This divorce is according to customary traditions and it does not go through the formal courts. Similarly the parties will also be expected to share their property in accordance with customary law under which a wife is entitled to what is called mawoko property.
This type of property is usually confined to personal effects and household utensils. This application of customary law in property sharing has resulted in some unfairness where some women have had to walk out with almost nothing yet they would have contributed significantly to the acquisition of the matrimonial property. It is in these circumstances that an aggrieved party may approach the court to seek its intervention for property distribution. The party has to provide justification to the court that general law is the legal system that should be applied in his/her case. One aspect which the courts take into consideration in deciding whether to apply general law or customary law is the lifestyle of the parties.
If, for instance, the parties are professionals living in an urban setting where they have acquired a house or houses and they generally adhere to a western type of lifestyle, general law will be applied in sharing their property. There are two key principles which a party from a customary law union can present before the court in order for it to determine how the parties’ property can be shared. These are tacit universal partnership and unjust enrichment. The courts have laid down some prerequisites which a party who is claiming the existence of a universal partnership has to prove.
In order for there to be a tacit universal partnership, each of the parties in the customary law union must have brought something to the union or made a commitment to bring something whether it is money, labour or skills. This element allows the court to take into account other non-financial contributions to the union. For example one spouse may contribute financially in buying a stand and building a house while the other may contribute labour in supervising the building or cooking for the builders.
It will be unfair in such a case to deny a share to the spouse who did not make financial contributions. The size of the share that each spouse gets is proportionate to their contributions in accordance with the principle of equity. Further, for a tacit universal partnership to be present, the business or acquisition of the property should be carried out for the joint benefit of the parties. A clear example of such an intention to have both parties as beneficiaries would be where the property in question is registered in both spouses’ names.
Where a party has made direct contributions in the acquisition of the property, it can also be an indication of the parties’ intention to benefit jointly from the property. The third element to be present is that the object of the business should be to make a profit and lastly the agreement should be a legitimate one. The third element of making a profit would be easily satisfied if the parties carried out a joint venture or business and used the profits to acquire the property which they want the court to distribute between them.
In a tacit universal partnership, the agreement is implied and not expressly stated hence the use of the word tacit. Another principle which a party in an unregistered customary law union can allege is that of unjust enrichment. If the party succeeds in proving to the court that the property distribution proposed by the other party will result in unjust enrichment, the court is then obliged to distribute the property in question in an equitable manner. In proving unjust enrichment, a spouse has to satisfy the court that he/she contributed something which will leave the other party enriched at his/her expense if not equitably distributed.
Take for instance a case where a husband is formally employed in the city and he sends the wife to the rural areas to do some farming during the rainy season. The husband provides the farming inputs while the wife provides all the labour. After harvesting the crops, the crops are sold and the proceeds used to buy a scotch cart. At some point, the couple who has an unregistered customary law union decide to separate and the husband claims the scotch cart as his property based on his financial contribution in buying the farming inputs.
In such a scenario it can be argued that awarding the scotch cart to the husband will enrich him at the expense of the wife who laboured in the fields and such enrichment will be unjust. The prevailing situation of not recognizing customary law unions as marriages and excluding them from the provisions of the Matrimonial Causes Act that regulate property distribution on divorce is not desirable. It has been a ground for discrimination for most women who are in such unions. It is hoped that legislative reform will come sooner than later so that all types of marriage will be treated equally. In the meantime, it is acknowledged that the principles discussed above have been a lifesaver mostly for women who would otherwise have found themselves dispossessed of property which they contributed in acquiring.
Irene Sithole (Zimbabwe Women Lawyers Association Member). For feedback, questions and comments please feel free to email: [email protected] — For a response to Gender Based Violence Issues, call our toll free number 08080131: hotlines 0776736873/ 0782900900