FAMILY LAW IN ZIMBABWE STUDENT NOTES

These notes are to be supplemented by further

reading of articles; texts; cases; journals and laws
from other jurisdictions

NOTE CHANGES BROUGHT BY NEW CONSTITUTION

DISCLAMER: Notes are for academic purposes only and student/user must refer to
actual cases and sources. STUDENT MUST READ CASES, ARTICLES AND OTHER
TEXTS ON FAMILY LAW

FAMILY LAW NOTES

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 To be supplemented by case law, other texts, comparison with other jurisdictions and
articles

Relevant constitution provisions

1. Section 2- Supremacy of the Constitution- alignment process- all laws conform to
Constitution.
2. Section 3 : Founding principles
 (g) – gender equality
 2(i)(iii0 recognition of the rights of women and children
3. Section 19 – best interests of the children paramount.
4. Section 25 –Protection of the family; The state and all institutions and agencies of
government at every level must protect and foster the institution of the family and in
particular must endeavour within the limits of the resources available to them to adopt
measures for the provision of care and assistance to mothers, fathers and other family
members who have charge of children and the prevention of domestic violence
5. Section 26- No marriage is entered into without the free and full consent of the intending
spouses; children are not pledged in marriage and There is equality of rights and
obligations of spouses during the marriage and at its dissolution and in the event of
dissolution of marriage through death or divorce necessary provision is made for the
protection of any children and spouses
6. Section 34- Domestication of international instruments
7. Chapter 3 – citizenship rights
8. Section 46- Interpretation of Chapter 4
9. Section 48(3)- Act of Parliament must protect the lives of unborn children and the act
must provide that pregnancy maybe terminated only in accordance with that law
10. Section 56 – non-discrimination- children should not be discriminated against on the
basis that they were born out of wedlock
11. Section 78 – marriage rights. Every person who has reached the age of 18 years has the
right to found a family. No one should be compelled to enter into marriage against their
will and persons of the same sex are prohibited from marrying each other
12. Section 80(2)- women and men shall have same custody and guardianship rights
provided that an act of Parliament may regulate how those rights are to be exercised
13. Section 81 –specific rights of children- right to a name and family name; prompt provision
of a birth certificate ; best interests paramount; protection of law- High court upper
guardian

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 CHAPTER 1
Constitutional provision: Section 25 – Protection of the family; The state and all
institutions and agencies of government at every level must protect and foster the
institution of the family and in particular must endeavour within the limits of the
resources available to them to adopt measures for the provision of care and assistance
to mothers, fathers and other family members who have charge of children and the
prevention of domestic violence: Section 78 – every person who has attained the age of
18 years has the right to found a family

INTRODUCTION

THE STATE, MARRIAGES, FAMILIES, WOMEN AND CHILDREN. DEFINATIONS OF THE

FAMILY, FAMILY NORMS, FUNCTIONS OF THE FAMILY, LEGAL PROTECTION OF THE
FAMILY

Engels in Origins of the family, private property and the state relied on the works of Morgan - studied
Native American Tribes.

Initially there was the primitive stage of the family. Characteristics of the primitive family were as follows:
 Unrestricted sexual freedom within a tribe
 every woman belonged equally to every man and every woman

This stage was followed by:

 Group marriage - whole groups of men and whole groups of women mutually possessed one
another so that there was little room left for the green eyed monster called jealous.

Characteristics of group marriage:

 Promiscuous sexual relationships including intercourse between parents and children

Next stage was the consanguine marriage whose characteristics were as follows:
 Multiple sexual partners were designated by generation - all males and females in a generation
within a tribal group were husbands and wives of one another.
 Relationships were replicated through all generations
 Only direct ancestors and their progeny were excluded from sexual intercourse with one another
 Descent was traced through the female because there was difficulty in identifying who the father
was.

Ultimately this form of family was overthrown and this marked the demise of matriarchal law of
inheritance. According to Engel’s, this marked the historical defeat of the female sex. Men took
command and women were reduced to serfdom and child bearers.
 Women were monogamous but not men. Men became wealth and wanted to bequeath wealth to
their children. If there was female fidelity, then descent can in theory be traced through the male
line.

However these theories are debatable because we have matrilineal societies of descent e.g. some
Shonas, Zulus, Tongas and Lozis in Zambia but there is also no evidence that patriarchal values are
absent from such societies.

Engel’s erroneously assumed that the monogamous system of marriage was the final stage and yet
families continue to develop.

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OTHER EXPLANATIONS OF THE FAMILY EVOLUTION
 Economic factors - need to maintain landholdings within a small number of interrelated and
mutually supportive individuals
 Production - Family seen as fulfilling labour needs adequate to maintain family enterprises
 Family began with the marital discord between Adam and Eve and the sibling rivalry between
Cain and Abel

The family is mutating and is therefore difficult to describe.

Murdock suggests the following indicators as constituting a family “The family is a social group
characterised by common residence, economic cooperation and reproduction. It includes adults of both
sexes at least two of who maintain a socially - approved relationships and one or more children own or
adopted of the sexually cohabiting adults”

Stephens: “The family is a social arrangement based on marriage and the marriage contract , including
recognition of the rights and duties of parenthood, common residence of husband and wife and children
and reciprocal economic obligations between husband and wife "

Burgess and Locke 1945 have a broader view of the family. They describe it as”.....a group of persons
united by marriage , blood or adoption constituting a single household , interacting and communicating
with each other in their respective roles of husband and wife , mother and father, son and daughter ,
brother and sister and maintaining a common culture "

Iwerierbor an African writer sees the family as " ......a group of persons related by blood and/or
marriage of which there are a wide variety of types such as the nuclear family , the extended family ,
the monogamous family , the childless couple and the single parent family . The basic family unit
consists of a father and a mother and their children, the so called NUCLEAR family”

Many of the criteria outlined above has been challenged e.g. common residence , presence of an adult
male , union by marriage and close economic cooperation . Some husbands are migrant workers and in
some families children and parents work and no longer pull resources together. In reality families
revolve around the woman and her labour and that of the children being very important. In most African
countries women are the mainstay of the economy.

NUCLEAR FAMILY

This seems to be the most persistent basis for beginning the process of family definition. It consists of a
married couple and their children. Bryant sees the nuclear family as the basis of the extended family.
This family is more common in the western world and to certain extend the developing world.

Man is the breadwinner and the wife is full time at home. Most of the families are democratic with the
father consulting the mother. Parents are responsible for nurturing and socialising the children.

However the socialisation function especially in Western societies is drastically shifting away from the
family - Parents are lacking commitment to childbearing and the state thru education is playing an
increasing role in the socialisation process. Mothers are also going to work en masse and children are
being placed in day care and TV and technology are shaping children's lives.

SINGLE PARENT AND OTHER FAMILIES

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The paradigm of socially approved sexual relationships is also being questioned because we now have
one parent families, the lesbian and gay family. We also have the cohabitation family. In other
jurisdictions couples who are in gay and lesbian relationships are allowed to adopt children. New
Constitution prohibits people of the same sex from marrying each other.

The single parent family mostly female headed is being recognised as a distinct family form. Women
who fall pregnant out of wedlock are not being shunned as they used to be.

The family may through divorce, death, non -permanent sexual relations or even deliberate choices.
One parent performs all the social parental functions.

Due to the AIDS pandemic, we also now have the phenomena of child and grandparent headed
homes.

THE EXTENDED FAMILY

CONJUGAL EXTENDED FAMILY: This is a family created through polygamy or plural marriages the
most common of which is polygyny. Polygamy refers to many mates of the opposite sex while polygyny
refers to a man having more than one wife and polyandry means a woman having more than one
husband.

CONSANGUINEOUS EXTENDED FAMILY: This is based on blood ties and may take the form of a
nuclear family combined with grandparents, aunts, uncles, older and younger siblings plus cousins.
Connell suggests that this type of family is run by a male elder with his wife and his son's household
under his authority. The wife is also under the authority of the family head and that of her mother in law
and older sister in law.

This type of family has got some economic and social advantages. If a parent dies, the children who are
orphaned and even aged grandparents are absorbed into the care of members of the family.

THREE GENERATION / STEM FAMILY OF JAPAN AND JOINT FAMILY OF INDIA: This is a family
associated with the primary aim of maintaining member’s way of life, family possessions and
occupation. The continuity of the family is safeguarded. Father becomes a Trustee of the family
property and fortunes for adult males. A woman is traditionally regarded as property of initially her
father, her husband and after his death of her sons.

The Amish family is peculiar to the USA, they have their own way of life, currency and dress.

THE FAMILY IN ZIMBABWE

Early writings focused on tribal influences. According to Radcliffe Brown in the African context, two
persons are kin when one is descended from the other as a grandchild is descended from a
grandparent or when both are descended from a common ancestor.

COGNATIC KIN / COGNATES = DESCENDED FROM A COMMON ANCESTOR OR ANCESTRESS

COUNTING DESCENT THROUGH MALES AND FEMALES. Kinship is thus based on descent.

AFFINAL KIN: Two persons are affinal kin when they are linked directly or indirectly through marriage...

In Zimbabwe we lack literature on the kinship patterns of non indigenous racial groups.

Bullock, Tackson, Holleman, Bourdillon are authors who have studied the Shona but this was mostly
rural Shona’s.

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 Patrilineal society
 Mutupo / totem
 chidawu
 Chizvarwa: group of agnates of the first and second generation descendants in the patrilene of
man i.e. his sons, daughters and son's children. This is the most fundamental family unit.
 Muzukuru - Functions he performs e.g. arbitration
 Marriage - A contract between two families. The whole of each family group becomes related/
affined to the whole of the other.
 Varamu - Sexual intercourse is strictly forbidden
 Mukwasha / tezvara relationships - Mukwasha mukuyu
 Isibongo - surname / clan name by which an adult should be addressed
 Zanzi/enhla/amahole
 Patrilineal society
 Marriage/ mukwenyana
 Ukuhlonipa - show respect to parent in law of the opposite sex
 Mulamu- Should wife be barren , man entitled to claim a younger sister
 Izihlobo - Relations covers all types of relatives, covers all types of relatives, agnates , other
agnates and affines

FORMS OF FAMILIES IN ZIMBABWE

COMMUTER FAMILIES:
These can be rural, urban or mine- rural. Married and unmarried men temporarily left communal rural
homes in search of employment. Wives and children remained in the village and the men would send
money to the village. Men occasionally commuted to the rural area. Such families are prevalent around
mining towns.

RURAL - RURAL:
 Children send to grandparents in areas where there are schools
 Wife/ children live in one area and husband in another area
 Wife with some children, husband with some children and other children in an urban area with
relatives.

Families like the above are necessitated by economic reasons .Wives become defector heads of
households and take on all responsibilities .HIV/AIDS is a threat in these types of families.

REPOSITORY FAMILY

A temporary arrangement where individuals for one reason or another take up residence with relatives
or a relative who but for the presence of the repositees may have been in a different family situation.
Riposetees may be blood kin on the paternal or maternal or affinal.

Relatives may be stored because they are in difficult circumstances. The repository family has to bear
the daily costs of maintaining the ripostes who may come in large numbers.

Newly married couples may also be expected to take in a lot of repositees.

Repositees including non marital grandchildren, returnee daughters with or without children, AIDS
orphans, elderly relatives.

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CHILDREN BORN OUT OF WEDLOCK - These face many problems. When mothers marry men who
do not want children as part of the package, fathers deny paternity, men marry women who may not
want step children.

COMPOSITE FAMILIES

Prevalent in small scale farming areas. 3 or more generations living together on one family landholding.
Live in separate households which are close together but some autonomy is lost to wider decisions.
Also adequate labour is available.

DIASPORA/ INTERNATIONAL FAMILY

This form of family has not yet been fully researched on because it’s a relatively recent phenomena.
Many Zimbabweans have migrated mostly for economic reasons but sometimes this breaks up the
traditional family unit as we know it, e.g. father may be in the UK, mother in Zimbabwe, children in
South Africa.

THE LAW AND THE FAMILY

Substantive legal texts lack definition of a family. Osborne’s dictionary offers a definition of the familia of
Roman law but not of the modern family. It may include:
 All persons who were subject to the potestas of the same individual whether his children,
grandchildren and so on or unconnected in blood e.g. slaves
 all descendants of the same ancestor
 all persons connected by agnation
 the slaves of a paterfamilias

This presupposes power relations. Marriage is introduced in family and the meaning of family is closely
associated with marriage and in most legal systems family is viewed as a consequence of marriage.

International human rights standards recognise the family as the natural and fundamental group unit of
society.

Statute law does not define family except by implication.

THE ROLE OF THE STATE IN THE FAMILY

1994 was the international year of the family. Looking at the arena of family law, it is apparent that the
state plays a role in the area of family law.

We have the traditional separation of powers concept in constitutional law i.e. the judiciary, legislature
and executive. Starting from the colonial era, the legislature has passed a lot of laws on family law
which shall deal with as we go along. Marriage is considered from a legal point of view as the basis of
the formation of a family. It is also apparent that there is conflict between customary and general law
e.g. lobola is an important stage in the process of marriage but is not required to constitute a valid civil
marriage between Africans. The Customary Marriages Act Cap 5: 07 still retains a provision for a
certificate to be issued stipulating that lobola has been paid even in civil marriages. A look at the old
marriage certificates will reveal that there was actually a portion reserved for writing down the
consideration i.e. lobola paid. Also almost all marriages between Africans commence with paying lobola
though not all of them are registered.

Lobola is much more binding and significant than formal registration though no hard and fast rules of
what constitutes a full lobola ceremony-differs from tribe to tribe

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Deceased Persons Family Maintenance Act - does not define family but has a section dealing with
dependants who may benefit from a deceased persons estate. But act in the day to day living does not
encompass what r who may be called family.

Maintenance for example extends beyond formal recognised links to those who have created a
relationship by reproduction e.g. a married man impregnates his girlfriend and is sued for maintenance.
Whilst the man is legally liable to maintain the child that does not mean that he in now husband and
wife with his girlfriend.

Other criteria used to define the family are blood. Kinship, reproduction and marriage. These seem to
take precedence when a dispute is to be resolved using the law e.g. a man who voluntarily supports a
woman out of her wedlock child even in a de facto relationship despite the obvious moral , emotional
and economic interests of the child will have no say in the welfare of the child in the courts . However in
the informal arena the man may have considerable influence on the welfare and future of both the child
and the mother.

Both the pre and post colonial legal structures have sometimes imposed superficial transformations of
the family and nowhere are this more important than in marriage laws.

INTERNATIONAL HUMAN RIGHTS STANDARDS AND THE FAMILY

International human rights standards recognise the family as the natural and fundamental group unit of
society.

S 16 of CEDAW - Recognises the individual rights of women in establishing a family within the family
and upon its dissolution requirement of equality, women being free to consent to marriage, free choice
of entry into marriage, parental responsibilities, child spacing , choice of family name and profession or
occupation , dissolution of marriage , guardianship and adoption of children.

S 28 African Charter of people's and human rights and the recently adopted optional protocol.

S 18 (2) Family portrayed as the custodian of morals and traditional values recognised by the family.

See also articles 27 - 29 - duties of the individual reflect aspects of African values according to which
individuals within the community have certain duties in addition to rights.

Article 17 of the Covenant on civil and political rights prohibits arbitrary or unlawful interference with the
family.

Individual - vs. - collective rights = individual rights within the family regulate internal relations within the
family and provide the basis for the constitution of the family as a collective unit, collective rights of the
family regulate external relations of the family within the rest of the community.

COMPULSORY READING:

1. Continuity and change- The family in Zimbabwe by WLSA

2. Reconceptualising the family in a changing Southern African environment – Mvududu et al
(WLSA)

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 CHAPTER 2

PATERNITY

RELEVANT PROVISIONS IN THE CONSTITUTION: Best interests of the child paramount and
right not to be discriminated against on the basis of being born in or out of wedlock

While maternity (who is the natural mother of a child) is never in doubt (surrogate mothers) the question
of who is the father (paternity) is not so clear.

Paternity is the legal determination of which man is the biological father of a child.

Paternity determines whether a child is born in or out of wedlock and also legal liability to maintain the
child.

Term illegitimate has been replaced by" out of wedlock ." though some judges still use that term e.g. In
Fitzgerald vs Chong and others HB 135/12 it was used and also an ‘illegitimate’ child was
defined

CHILDREN BORN IN WEDLOCK UNDER GENERAL LAW

 All children born during subsistence of marriage are presumed to be children of the man married
to the mother of the child - pater est quem nuptiae demonstrant - they are legitimate
 Even if the woman divorces the man , as long as she is pregnant at the time of termination of
the marriage, the child is presumed to be that of the man woman was married to before the
divorce in other words the man woman is divorcing
 A ( woman ) divorces B and marries C- A is pregnant and circumstances are such that the
pregnancy could have been B's or C 's = presumption in favour of the second husband - by
marrying during the annus luctus = year of mourning - exposes himself to the risk that A might
be pregnant from B . No difference whether marriage ended by divorce or death. B i.e. second
husband exposes himself to the risk of a child of a former husband being fathered upon him.

Pater est quem nuptia demonstrant - It is only a presumption and it is rebuttable my any interested
party - bastardisation action i.e. action to prove that actually child does not belong to a particular man
and was born out of wedlock.

Courts –presumption vs bastardisation actions , see Shumba vs Shumba HB-25-05, man alleged that
child was a goblin

Proof - father could not possibly be the father not that he is probably not the father. Total exclusion of
paternity e.g. sterility, lack of access at the relevant time or blood tests that exclude paternity. DNA is
also now being used to determine cases of paternity, see Sanders Moyo vs Helen Moyo HH-31-05 ,
DNA proved that an alleged child of the marriage was fathered by another man.

If woman has sexual intercourse with other men at the time that she could possibly have gotten
pregnant , such proof only shows that man possibly not the father so that does not suffice to rebut the
presumption ( Exceptio plurium concumbentium)
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BLOOD TESTS

In Zimbabwe, blood tests are currently carried out at NBTS or the AISBT. Through the courts or through
a court order. An appointment is booked and on the allocated day, the parties go and have their blood
drawn . By parties we mean, the father, the mother and the child( ren) but now its possible just for the
alleged father and the children to go on their own due to advancement in technology.

Blood tests can establish a man's non paternity but not his paternity. In other words blood tests can
show that a man is NOT the father but they cannot show that he is the father. Can only show that the
man belongs to a group of men who are possible fathers . Results show probability- 93 % paternity
highly probable

Question of whether courts can compel a person to undergo blood tests, in our jurisdiction was covered
in the case of Mtshingwe vs Moyo HB-120-05: Two parties claiming to be father of a girl child.
Now possible to determine paternity just by using blood samples of alleged father and child,
court can acting in the best interests of a child order parties to undergo blood test.

In Scotland, a court has no inherent power to compel a non consenting adult to undergo a blood test
since this would be an invasion of privacy.
Canada and England follows the same approach

What of children? The High Court is the upper guardian of all minor children should it compel children
to undergo blood tests.?

England: earlier approach was to use the concept of best interests of the minor child as being the
paramount consideration. Latter approach enunciated by the Master of the Rolls Lord Denning in S -
VS - McCall :interests of justice are taking precedence over interests of the child.

South Africa rejected the new English approach . Sole consideration is the best interests of the child.
For adults - view that the privacy of the individual was not so sacrosanct. Based on the new
Constitution the best interests of the child should be of paramount consideration

DNA now accepted as a method to prove non paternity- Westerhof case, Moyo vs. Moyo ( Bhunu J)

CHILDREN BORN OUT OF WEDLOCK

Father can do one of these two things:

 denial of sexual intercourse
 admits sexual intercourse but deny being the father of the child.

If admits intercourse, obviously no dispute arises.

 If denies sexual intercourse- shifts onus on woman to prove that sexual intercourse took place at
the relevant time - proof on a preponderance of probabilities ( Any ideas on how this can be
proved? ) In terms of the maintenance act, inquisitorial in nature, court can call witnesses mero
motu ) If fails to prove that sexual intercourse took place, then the father is absolved.
 If proves that sexual intercourse took place at the relevant time, onus shifts on to the man to
prove that he cannot possibly be the father of the child by the following defences :

REBUTTING THE PRESUMPTION OF PATERNITY

( a ) Sterile
( b) blood tests that exclude man from paternity
( c ) non access to the woman at the relevant time

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 ( d) DNA tests that exclude paternity eg in Sanders Moyo vs Helen Moyo HH-31-05, DNA
excluded the alleged father.

 If man admits sexual intercourse at any time he is immediately presumed to be the father of the
child ? until he proves on a balance of probabilities that he cannot possibly be the father . So in
Zim: if a man admits intercourse woman is to be believed in her identification
 Non access at the relevant time: man admits sexual intercourse but at a time when the woman
cannot have conceived the child whose paternity is in dispute- 2 years before birth but not 10
months before birth of child- no physical access at the time of gestation e.g. out of the country ,
in prison - this is a question of fact and each case has to be decided on its own merits.
 Sterility: The relevant period is at the time of conception i.e. the man must be sterile at that time
and not at some time after.

Sterility - vs. - impotence: Sterility is the inability to procreate children whereas impotence is the inability
to perform a sexual act.

Impotent man cannot achieve sexual act but a sterile man can have the capacity to have sexual
intercourse but his own semen is unable to make a woman pregnant.

Impotence can be accompanied by sterility - double jeopardy

Proof of impotence does not rebut the presumption of paternity unless it is accompanied by sterility.

Sterility requires clear medical proof - expert

In SA courts appear to have taken view that impotence is sufficient to rebut the presumption of
paternity - R -VS Pie

INSUFFICIENT DEFENCES
 That the woman slept with other man at the relevant time - already discussed under children
born in wedlock.
 proof that the woman is a prostitute - not sufficient - it is the policy of the law that children shall
be maintained by those men who are the possible authors of their being
 use of contaceptives: no method of contraception is 100% effective
 coitus interruptus- not a defence especially since it is so infallible
 Woman unworthy of belief: early SA cases took this approach but this is no longer the case

EX SPOUSES
 Former wife suing ex husband for maintenance for child - husband's admission of sexual
intercourse during the marriage raises the presumption of paternity - Hahlo raises the absurdity
of this by way of illustration - if wife gives birth to an illegitimate child way after the divorce- is it
suggested that the ex husband should be held to be the father of the child unless he can satisfy
the court that he cannot possibly be the father.

However this is not so: Presumption of paternity arises due to admission of illicit sexual intercourse .
Those who engage in illicit sexual intercourse risk children being fathered upon them. Sexual
intercourse within marriage is not illicit so that its admission by the ex husband does not raise the
presumption of paternity of a child conceived and born long after the marriage was dissolved.

Ex husband must admit to the post divorce sexual intercourse if presumption of paternity should apply
to him.

CUSTOMARY LAW PATERNITY

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Children born in wedlock - Children born in African customary law are presumed to be the children of
the man woman is married to ( Gomba harina mwana ) An adulterer has no right to children born to his
married lover even if he can prove that he is the father. SEE SHUMBA VS SHUMBA HB-25-05 – BUT
LOBOLA IS NOT A LEGAL REQUIREMENT ???/??

Colonial courts took the view that the resolution of paternity disputes under customary law should be
dealt with in terms of Roman Dutch Law. A adulterer can pay maputiro to the woman’s husband and if
this is accepted, he the adulterer acquires rights of guardianship and custody over the child.

OUT OF WEDLOCK CHILDREN

Under customary law, the father of a child born out of wedlock had no duty to maintain the child and
had no rights of guardianship or custody over the child. Duty of maintenance fell on guardian of the
child's mother.

If man paid chiredzwa/ amalobolo omntwana/isihlengo to the woman’s guardian of the child, then if this
was accepted , the rights of guardianship and custody given to the man

Customary law- No clearly developed rules determining customary law on children born out of wedlock.
If the man pointed out as father refused paternity, then this was never followed through.

Seduction: Question arose of which man impregnated an unmarried woman. If in action for seduction
damages, the D was also found to have been responsible for impregnating seduced woman, quantum
increased of damages. So courts had to determine paternity of children in connection with seduction
claims.

* Now in terms of the maintenance Act - father of child is primarily responsible for the maintenance of
the child- so paternity under customary law must be first established before maintenance can be paid.
Still Roman Dutch Principles apply, this means that the law is the same under general and customary
law.

LYING IN EXPENSES

During pregnancy and immediately after the birth of child, a woman may incur expenses in respect of
the pregnancy.

Under both general and customary law, a mother of a child born out of wedlock is entitled to recover
lying in expenses from the father of the child.

Can be included in seduction damages claim.

Lying in expenses can only be claimed after the birth of the child.

Maintenance of the woman can also fall under lying in expenses i.e. maintenance during pregnancy.

Money need not be equivalent to the mother's loss of earnings during this period .

Lying in expenses can include:

 maternity home expenses
 medical expenses
 maternity clothing

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 clothing and food for the child

In other cases Card - vs. – Strang 1984 (4) SA 667 :not entitled to claim from the defendant a refund
of the expenses she has incurred in respect of her own person such as maternity wear and toiletries.

Lying in expenses are primarily for the benefit of the children.

Adulterine children : Section 14 of the General Laws Amendment Act. They become legitimate if
parents subsequently marry.

CASES

1. Dube vs Ndove 1997 ( 2) ZLR 339

2. Ranjith vs Sheila and another 1965 (3) SA 103
3. Seetal vs Pravitha and another 1983 ( 3) SA 827
4. X and Y 1973 ( 3) SA 118
5. Mountford vs Mukukumidzi 1969 ( 2) SA 56
6. Moodley vs Gramani 1967 ( 1) SA 118
7. Green vs Shirto 1974 ( 2) RLR 80
8. P vs S 1978 RLR 80
9. Mahomed vs Sheik 1978 ( 4) SA 31
10. Rex vs Pie 1948 ( 3) SA 1117
11. S vs Swart 1965 ( 3) SA 454
12. S vs sambo 1962 ( 4) SA 93
13. R vs Swanepoel 1954 ( 4) SA 31
14. Bafana vs Kanhyisai SC 29/87
15. Munhenga vs Chakadenga SC 32/87
16. Rex vs Goosen 1948 ( 4) SA 211
17. State vs Jeggels 1962 ( 3) SA 704
18. De Wit vs Uys 1913 CPD 653
19. Franks vs Rex 1924 NPD 329
20. Mcdonald vs Stander 1935 AD 325
21. Chibanda vs Masuko SC 69/89
22. Machingura vs Makurira SC 127/90
23. Gundavakuru vs Ganyani SC 119/92
24. Mangwiro vs Mugarisanwa SC 234/92
25. Mazarura vs Mazarura SC 113/90
26. Mangwendeza vs Robinson SC 189/91
27. Kashiri vs Muvirimi 1988 ( 1) ZLR 270
28. S vs T 1988 ( 2) ZLR 103

CUSTOMARY LAW

Where a woman claims maintenance for her illegitimate child, an admission of intercourse by the man
indicated by the woman as being the father of the child creates a presumption that he is the father and
it places an onus on him to prove that the cannot be the father. Proof by the man on a balance of
probabilities will suffice to rebut the presumption. The proof must relate to a total impossibility that he
could be the father of the child. Even if there is no admission by the man of intercourse, as a matter of
law evidence of the mother does not require corroboration in paternity or seduction cases.

CASES ON LYING IN EXPENSES

13
 1. Nyoni vs Mamova 1949 AAC 455
2. Sager vs Bezuidenhout 1980 ( 3) SA 1005
3. Card vs Sparg 1984 ( 1) SA 667
4. Lourens vs Van Biljon 1967 ( SA) 703

CHAPTER 3

DOMICILE OF A CHILD REGISTRATION OF BIRTH AND CITIZENSHIP

Relevant Constitution provisions : Section 35(3)(c)- Zimbabwean citizens are entitled to birth
certificates and other identity documents issued by the state; Section 36(1) Citizenship by birth
and also (3) a child found in Zimbabwe who is or appears to be less than 15 years of age and
whose nationality and parents are not known, is presumed to be a Zimbabwean citizen by birth
and section 37- citizenship by descent. Section 56(3) – right to non-discrimination on the basis
of whether one is born in or outside wedlock ; Section 81- right to be given a name and family
name and prompt provision of a birth certificate

Under African Customary law , the concept of domicile is unknown. Domicile is a question of status and a
person can only have one domicile at a time. Child takes domicile of its guardian at that particular time.
Usually domicile is taken after the father so person takes domicile in country where the father is domiciled
at the time of the child's birth. This is called the domicile of origin.

Child born out of wedlock takes its domicile from its mother. Child cannot change its domicile since this
requires intention to change and physical arrival at the new place of domicile. A guardian's change of
domicile means that the child also automatically changes its domicile.
BUT NOW IN TERMS OF SECTION 80 OF THE CONSTITUTION, EQUAL GUARDIANSHIP AND
CUSTODY RIGHTS BY WOMEN AND MEN

Domicile is therefore much more than a physical act. It is also involves a mental element.

REGISTRATION OF BIRTH ( REFER TO NEW CONSTITUTION PROVISIONS)

INTRODUCTION:

Zimbabwe is one country, which has a good system of keeping important documents like death
certificates and birth certificates. For inheritance purposes certain acts have to be done during a life
time and the most important of all is the registration of a birth. If a birth is not registered that means
there are no record for that person. He/she will not be able to get a National identity card . If such
person dies, a death certificate cannot be taken. If there is no death certificate the estate cannot be
registered.

All births must therefore be registered and it is an offence not to do so.

PURPOSE OF THE LAW:

The Birth and Death Registration Act chapter 5 : 02 act lays down the procedure for registering a birth

14
OBJECTIVES OF THE ACT:

It highlights the importance of registering a birth for the following purposes:

 Registering for school.
 Applying for a national identity document.
 Applying for a passport.
 Applying for a job.
 Inheritance – proof that child of deceased

IMPORTANT POINTS ON BIRTH REGISTRATION

REGISTERING A BIRTH:

A BIRTH CERTIFICATE SHOWS THE FOLLOWING INFORMATION:

A Person’s;
 Name
 Age
 Place of birth
 Date of birth
 Name of mother and /or father
 Citizenship

IT IS EXREMELY IMPORTANT THAT EACH CHILD GETS A BIRTH CERTIFICATE:

WHO REPORTS THE BIRTH OF THE CHILD?

The mother or the father reports the birth but if they are for some reason not available anyone of the
following can report the birth:-
 The person in whose home the child was born or the headman in whose community the
child was born as long as the headman knew about the birth.
 The person in charge of the hospital or clinic in which the child was born.
 Any person over the age of 18 who was present when the child was born.
 Any person over the age of 18 who is responsible for looking after the child.
 If the parents of the child have an unregistered customary law union they both need to
go to the Registry with their I.D.s to register the birth.

HOW IS THIS DONE?

A notice of birth form is completed.

CONFIRMATION OF BIRTH:

Every woman who gives birth in a hospital or clinic gets a confirmation of birth record. This record
shows the name of the mother, her I.D number, permanent physical address and if it is in a rural area,
name of village, chief and the district, hospital admission or maternity register number, date of birth of
child, birth weight and sex of child, place of birth of child. If the child was born at home, name of the
person who delivered the child.

WHAT THE PERSON GOING TO REGISTER THE BIRTH MUST TAKE.

15
The person going to register the birth must take with him/her the following.
 The birth confirmation record from the hospital or clinic where the child was born.
 The parents’ identity documents.
 A copy of their marriage certificate.

REGISTRATION OF A BIRTH OF A CHILD WHOSE PARENTS ARE NOT MARRIED TO EACH

OTHER – SEE SECTION 12 OF THE BDRA

This is commonly known as a child born out of wedlock.

The mother has to decide whether to register the birth in her own name or the father’s name. However
the father cannot be forced to register the birth of a child in his own name if he is not married to the
mother of the child. He can only be persuaded to do so. POTENTIALLY THIS IS IN CONFLICT WITH
NEW CONSTITUTION BECAUSE IT IS DISCRIMINATORY

The father’s name can only be used in the following circumstances;

 If the father agrees. Both father and mother have to go to the registry and the father signs a
declaration of paternity at the back of the notice of birth form stating that he is the father.
 If the mother of the child dies or if she abandons the baby, the father of the baby must go to the
registry and sign the declaration of paternity.
 If the man who is said to be the father of the child dies, the mother of the child goes to the
registry with a parent or close relative of the deceased. They will sign an affidavit saying that the
child belongs to the dead person.

See : Paunganwa vs Registrar of Births and Deaths and another HH – 406-16 for a discussion
on the effect of section.

USE OF MOTHER’S NAME:

If the father of the child refuses to sign the declaration of paternity, the mother can just fill in the section
on the mother and leave out details of the father. SEEMS CONTRARY TO PROVISIONS OF THE
CONSTITUTION BUT HOW BEST CAN THIS BE REMEDIED?

CHANGING OF NAME ON BIRTH CERTIFICATE

When a name is registered it cannot be changed without proper procedures being followed. It is a crime
to change the information on a birth certificate.

A name which is not spelt correctly can be changed easily. One goes to the Registry and fills in a BD 22
form and an affidavit stating why the name was not spelt correctly. If the Registrar is satisfied, he /she
will correct the spelling and issue a new birth certificate to Applicant.

Changing a surname can only be done by a lawyer who is also a notary public, see Section 18

It is done by way of a Notarial deed of change of name. This is signed by the person who wants to
change the surname and the Notary public. It is filed with the Registrar of deeds who stamps it and
returns a copy to the Lawyers. A notice is published in the government Gazette showing that a person
is changing a name. A copy of the notice and the Notarial deed are then taken to the Registrar who will
issue an amended birth certificate.

16
Once the amended birth certificate is given it is used to change all the other documents like passport,
national I.D and marriage certificate. For a minor child, it is the guardian who signs the Notarial Deed of
change of name.

In M VS A AND ANOTHER 1981 ZLR 30 , It was held that changing a child's surname requires the
consent of the child's legal guardian even in instances where the mother and not the father is the
custodian parent.

For the position of children born in unregistered customary law unions , see Katedza vs Chunga
and another HH -50 -03: Mother had legal right to change child’s surname since this is not an act
governed by customary law. POTENTIALLY RUNS FOUL OF NEW CONSTITUTION WHICH
PLACES BEST INTERESTS OF THE CHILD AT THE CENTRE

NOTE: EDUCATIONAL CERTIFICATES CANNOT BE CHANGED TO REFLECT THE NEW NAME(S).

BIRTH CERTIFICATES OF CHILDREN WHOSE PARENTS ARE NOT ZIMBABWEANS BUT ARE IN
ZIMBABWE LEGALLY

These children can be registered in Zimbabwe. The parents will have to take the following documents
 Passports
 Residence permit
 The I.D’s from their own countries
 Marriage certificate
 Birth confirmation record

CHILDREN WHO HAVE ONE ZIMBABWEAN PARENT AND ONE FOREIGN PARENT:

They can be registered even if one of the parents is in Zimbabwe illegally. The Zimbabwean parent
uses his or her I. D to register the birth.

WHERE ARE BIRTHS REGISTERED?

Births are registered at the nearest District Registry to place where baby was born and if far away
nearest District Registry.

COPIES OF BIRTH CERTIFICATES:

Copies of birth can be obtained from the central Registry in Harare or the Provincial registry.

INFORMATION REQUIRED:

To get a copy of a birth certificate one must have the following information
 Full names as spelt on the original birth certificate
 Date of birth and date of registration of birth
 Place of birth
 Birth entry number

WHO CAN GET A COPY OF A BIRTH CERTIFICATE:

 Parents or guardian of a minor child
 The person him/herself can get a copy of a birth certificate if over 18 years

WHERE CAN ONE GET A COPY OF A BIRTH CERTIFICATE:

17
Copies can be obtained from the Provincial Registry or at the Main Registry at Makombe Building in
Harare.

Other important sections

1. Section 8
2. Section 19

CORRECTION OF ERROR
See case of Timbe vs Registrar General SC -25-08 : Relatives had caused the cancellation of
birth certificates of deceased’s relative . False entry can only be cancelled by an order of court

Deletion of entry : Mubaiwa vs Mubaiwa and another HH- 170-13: Applicant sought an order
compelling registrar to delete entry and also an interdict vs use of surname Mubaiwa. Surname
registered on wrong perception that he was the father. Application dismissed

CITIZENSHIP

What is citizenship?
A citizen has rights bestowed on them which include the right to live in a country, to vote and to enjoy
other rights in relation to status

A person who does not have citizenship is said to be stateless

Chapter 3 of the Constitution provides for citizenship broadly and this relates to citizenship by birth,
descent or registration

Citizenship is retained despite marriage or dissolution of marriage

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 CHAPTER 4

GUARDIANSHIP, CUSTODY , ACCESS , LEGITIMACY AND ADOPTION

Relevant provisions in the constitution – Best interests of the child and non-discrimination,
Section 80(2) women and men have same rights regarding guardianship and custody of
children. Section 80(3) – All laws, customs and traditions that infringe women’s rights are void
to extent of inconsistency

ALL ISSUES RELATED TO CHILDREN, THE BEST INTERESTS OF THE CHILD TEST SHALL BE
THE PARAMOUNT CONSIDERATION AS PER SECTION 19 AND 81 OF THE CONSTITUTION

CONCEPT OF GUARDIANSHIP , CUSTODY AND ACCESS

There is often confusion on the aspects of guardianship and custody. From the onset it should be clear
that the two concepts mean different things. One parent can have custody whilst the other has
guardianship or one parent can have both especially when parties divorce or separate.

Hahlo -" Guardianship in its widest sense includes custody and embraces the care and control of the
minor's person a well as the administration of his property and business affairs. Where custody and
guardianship are separated , the custodian parent has the care and control of the minor's person , while
the guardian parent administers his property and business affairs ( guardianship ) in the narrower
sense"

SEE : RALPH VS VUUREN HH – 5-09 SETS OUT THE DIFFERENCE BETWEEN CUSTODY AND
GUARDIANSHIP

We have this form of guardianship that can only apply when married parents are living together as a
single family. BUT NOW SUBJECT TO SEC 80 OF THE CONSTITUTION AND SEC 19 BEST
INTERETS

Guardianship and custody take on a specific meaning when parties are separated or divorced .
Guardianship will then be limited to assisting the child its the admin of business affairs or performing
juristic acts e.g. if a child is knocked down by a car the guardian will if the child is under seven years
represent the child and if above seven years assist the child in suing for damages. The child is clothed
with legal capacity through the guardian .

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Custody on the other hand refers to the physical care and control of the child- regulating the life of the
child, choosing its residence , choosing with whom child should associate, deciding on matters of
religion, choice of school e.t.c.

SEE: BERENS s BERENS HH – 28-09 and SAMUDZIMU vs NGWENYA HH -92-08

Sole guardianship and custody were created by the Guardianship of minors act ( the Act ) . Section 4
of the Act- What can sole guardian do ?

What if parents are living together - see section 3 of Act. BUT NOW EQUAL GUARDIANSHIP AND
CUSTODY RIGHTS

Sole custody is the term used to distinguish sole custody one parent acquires by virtue of an order of
court when the spouses are separated or divorced from the joint custody parties have when they are
staying together . Powers of sole custodian parent see section 4 of the Act.

Access is the right conferred on a non custodian parent to visit the child, stay with child or communicate
with child. Reasonable access always implied in an order of custody - section 6 defines access order.

GUARDIANSHIP OF CHILDREN BORN OUT OF WEDLOCK UNDER CUSTOMARY LAW

A child born out of wedlock- father has no claim to guardianship which is vested in the guardian of the
unmarried mother. The natural father can pay chiredzwa or amalobolo omtwana to the guardian the
latter having an unfettered discretion to reject or accept the payment.

Has LAMA changed this position ? The basis of giving guardianship to the guardian of the mother of the
child was based on the premise that women were perpetual minors. With LAMA women acquired
majority age at 18 years so it would seem that when a woman reaches 18 years and having had a child
out of wedlock, she becomes the guardian of the child also bearing in mind that the woman herself has
no guardian. Even paying chiredzwa will not alter this position ( What if father has accepted chiredzwa
and the woman turns 18 years and wants her child back ? ) - This is a moot point.

SANYANGOWE VS CHALIMBA HH-142-09: SIMILAR CASE PENDING IN ANOR COURT SO

APPLICANT COULD NOT SEEK TO BE CONFIRMED GUARDIAN WHEN SHE HAD DE FACTO
CUSTODY

SHIRIDZINODYA VS SAMANYANGA HH-68-11: UCLU MOTHER DEPRIVED OF CUSTODY ON THE

BASIS OF BEST INTERESTS OF THE MINOR CHILD, NUMEROUS AFFAIRS, LANDLAD TESTIFIED
VS HER.

What is the effect of the new Constitution on this?

GUARDIANSHIP OF CHILDREN BORN OUT OF WEDLOCK UNDER GENERAL LAW

Roman Dutch Law except for purposes of maintenance regarded the child born out of wedlock as
having no father. Guardianship vested in the mother of the child. This applies if the mother is herself a
major but if she is a minor a guardian dative is appointed over the child by the court. The High Court as
Upper Guardian of all minors can award guardianship to a suitable third party if it is satisfied that the
guardianship of the mother is harmful to the child's interests. If mother is under the age of 18 years, a
guardian dative is appointed.

20
Section 59 of the Children's Act - Consent to adoption given by minor mother of illegitimate child.
SEEMS TO BE UNCONSTITUTIONAL NOW

We now have uniform law so that both under customary and General law , the mother of the child if
over 18 years is the guardian if the child is born out of wedlock.

CUSTODY AND ACCESS TO CHILDREN BORN OUT OF WEDLOCK UNDER CUSTOMARY LAW

As a general rule under customary law the position was that the natural father of an child born out of
wedlock child had no right of custody to the child which custody vested in the guardian of the mother of
the child. The natural father could pay chiredzwa or amalobolo omtwana to acquire custody of the child.

This would seem to have changed with LAMA because now the major mother does not herself have a
guardian any more.

Be that as it may, the prime consideration in any custody dispute is the best interests of the child
concept as per section 5 of the Customary law and local Courts Act.

This does not mean that the natural father has right to claim custody of child under customary law. His
right is no more than that of a third party and he must prove that there are strong and compelling
grounds to give custody to him. BUT SEEMS CONTRARY TO THE NEW CONSTITUTION IF THE
PARAMOUNT CONCERN IS THE BEST INTERESTS OF THE CHILD

The question of access never arose because the father had no right of custody unless he paid
chiredzwa and as a result under customary law, the father of an illegitimate child has no inherent rights
of access to his child.

CUSTODY AND ACCESS TO CHILDREN BORN OUT OF WEDLOCK UNDER GENERAL LAW

Under Roman Dutch Law , the natural custodian of a child born out of wedlock is its natural mother.

SEE LOTHIAN vs VALENTINE HH – 91- 07 and contrast this with CRUTH vs MANUEL SC 73- 98

The father can apply for custody just like a third party since he has no inherent right of custody. He can
succeed by showing that the mothers custodianship is a danger to the welfare of the child and not
merely that he will make a better custodian parent. SEE MAKUMBE VS MUNZVENGA HB 29/15
reinforcing the Cruth vs Manuel decision

CRUTH vs MANUEL- Sandura J approach is more in keeping with the new Constitution

As under customary law the Customary law and local court acts the paramount consideration is the best
interests of the minor child.

SEE ALSO : DONGO VS THE REGISTRAR GENERAL AND ANOTHER SC 6/10 and ALSO
KATEDZA vs CHUNGA supra.

See also TAWONANHASI vs TSHUMA AND OTHERS HB- 63-08: Father in UCLU, paid lobola,
depriving natural parent of his rights is done in exceptional circumstances.

ADULTERINE CHILDREN

If the mother is unmarried and has children with a married man, custody and guardianship vests in the
mother of the child.

21
Under customary law if a married woman has children with a man other than her husband, the children
are presumed to be those of her husband so custody and guardianship vests in him. Even if there is a
divorce, the children's guardianship and custody remains with the husband of the woman. The
biological father can acquire rights of custody and access if he pays compensation to the husband of
the woman the latter having a discretion to accept or reject it. By paying he will be acknowledging
paternity.

On the other hand, the husband of the adulterous woman can reject the adulterine children and it
appears that the mother becomes the custodian parent and also guardian of the children.

Under general law we have already dealt with the principle of pater est quem nuptiae demonstrant and
guardianship and custody vests with the husband of the woman. If this is rebutted the children become
illegitimate and guardianship and custody is determined as of illegitimate children.

GUARDIANSHIP OF CHILDREN BORN INSIDE WEDLOCK UNDER GENERAL LAW.

Guardianship of children whose parents are legitimately married is governed by general law regardless
of race.

The father is the guardian of all children born during the subsistence of the marriage but in terms of the
Guardianship of minors act , he must act in consultation with the mother. ( Section 3 ) This also deals
with position at divorce if no sole guardianship has been granted. NOT ANYMORE BECAUSE IN
TERMS OF NEW CONSTITUTION MOTHER AND FATHER HAVE EQUAL RIGHTS OF
GUARDAINSHIP

SOLE GUARDIANSHIP

Section 4 of the Act.

Sole guardianship is not something granted lightly .

( What are the circumstances that would justify sole guardianship ) BASED ON BEST INTERESTS OF
THE CHILD

TRANSFER OF GUARDIANSHIP

If parents are living together and one dies under General Law, the remaining parent becomes the
guardian. However if both parents die there is no automatic transmission of guardianship as in
customary law. The Children's court is empowered to appoint a guardian ( section 9 ) unless the
parents appointed one in their will/s.

The application must be advertised, see ex parte NDLOVU HB-116-04 and MUSONZA vs THE
MASTER HH – 89- 07 for what the court should consider.

MUKUNDU VS CHIGUMADZI – HH-818-15 – Guardianship awarded to grandmother even though

father of child was alive

In re NHERERA HH-117-15: SEC 9 OF THE GMA- APPLICATION CANNOT BE MADE TO THE MAG
COURT WHERE ONE OF THE PARENTS IS ALIVE- CAN ONLY BE MADE TO THE HIGH COURT

22
In Re; Senzeni MOYO HB-16/13: MATTER REMITTED BACK TO THE CHILDREN’S COURT – CRT
HAD GRANTED APPLICATION FOR GUARDIANSHIP WITH NO INQUIRY INTO APPLICANT’S
SOCIO-ECONOMIC STATUS

In Re: Gonyora HB -11-15- Court smelt a rat, no proper inquiry had been done, proposed
guardian staying with child in late father’s house, no estate registered.

Under customary law, the heir automatically assumes guardianship and there is no need for a formal
court order.

GUARDIANSHIP OF CHILDREN BORN INSIDE WEDLOCK UNDER CUSTOMARY LAW – BEST

INTERESTS OF THE CHILD PARAMOUNT

This applies to children born under a registered customary law mariage or UCLU.

Does the act apply in these situations ?

During the colonial period , the Act did not apply to Africans. There are conflicting view . Dr Galen
thinks that it probably does not apply but Mary Maboreke came to the conclusion that it applies.

The Act however does not apply to UCLU. However in terms of section 3( 5 ) of the Customary
marriages Act, an invalid marriage such as an UCLU shall be regarded as valid for purposes of
custody, Guardianship and access. This is only under customary law. SEE KATEDZA vs CHUNGA
SUPRA

Notwithstanding the law that is in question , in terms of the Customary Law and Local Courts Act, the
paramount consideration now is the best interests of the child concept.

In terms of customary law , the father is the natural guardian of all children born during a marriage
provided lobola has been paid. If no lobola has been paid, the guardian of the mother of the children
has those rights. However because of LAMA now women are majors at 18 so they can become
guardians of their children. SEE TAWONANHASI vs TSHUMA SUPRA

ALSO DENYING A MOTHER UNDER CUSTOMARY LAW RIGHT TO GUARDIANSHIP SEEMS TO

BE CONTRARY TO THE NEW CONSTITUTION

CUSTODY OF CHILDREN BORN INSIDE WEDLOCK UNDER GENERAL LAW –BEST INTERESTS
OF THE CHILD PARAMOUNT

The relevant acts are:

 Matrimonial causes Act
 The children's Act
 The guardianship of minors act

If parents are living together they have joint custody.

If parents separate, then the custody should be given to the mother until and unless an order regulating
custody has been made. In reality most women upon separation leave children behind because they do
not have the economic means to look after the children then.( Section 5 Guardianship of minors act )

If the mother is denied custody, she can apply to court to have this right enforced i.e. the children's
court. The court MAY give the mother custody( SEEMS COURT HAS DISCRETION LOOK AT
CASES. MAJORITY SEEM TO SAY THAT THE COURT SHOULD GO INTO THE BEST INTERESTS

23
OF THE CHILD AT THIS STAGE.OTHER CASES STATE THAT THE MOTHER HAS DE FACTO
CUSTODY AND IF FATHER WANTS CUSTODY HE HAS TO APPLY TO COURT) PROF NCUBE is of
the view that this may not be an entirely correct interpretation of the law and that the mother must have
custody as of right but throws further mud by stating that except in exceptional circumstances. Mother
may also make an application for maintenance for the minor to the children's court.

SEE : De MONTILLE vs De MONTILLE HB-20-03

Father may also make an application to deprive the mother of custody ( Section 5 ( 3 ) ( b ) and ( c )
deals with access SEE HALE VS HALE HH-271-14

SHOKO VS SHOKO HB 134-13 – TENDER YEARS DOCTRINE

NEW CONSTITUTION SAYS EQUAL GUARDIANSHIP RIGHTS AND IT IS NOT CLEAR WHAT
IMPACT THIS HAS ON THE MOTHER HAVING SOLE CUSTODY UPON SEPERATION. ONE VIEW
IS THAT COURT SHOULD DECIDE AND THE OTHER IS THAT ITS OKAY AS IT BECAUSE IF THE
FATHER IS NOT HAPPY WITH ANY ASPECT, HE CAN APPLY TO COURT TO DEPRIVE MOTHER
OF CUSTODY

SEE TANGIRAI VS TANGIRAI HH – 65-13: A MOTHER LEFT CHILDREN WITH HUSBAND AND
COURT SAID IT WOULD NOT BE IN THE BEST INTERESTS OF CHILDREN TO GIVE HER
CUSTODY AS OF RIGHT

CUSTODY ON DIVORCE : BEST INTERESTS OF THE CHILD PARAMOUNT

Under the old RD law, the father's right of custody was seen as superior as long as the marriage
remained undissolved. On divorce, custody was to be awarded to the innocent spouse.

Now the primary consideration is the best interests of the minor child. SEE BECKFORD vs
BECKFORD 2006 ( 2006) (2) ZLR 377

Section 4 of the Guardianship of minors act, also section 5 of the Customary law and local courts act,
Section 10 ( 2 ) ( 3 ) of the Matrimonial causes act.

SA CHILDREN’S ACT DEFINE THE BEST INTERESTS IN SECTION 7 OF THE CHILDREN’S ACT

The best interests include but is not necessarily limited to : Child's age
 Health
 sex
 educational and religious needs
 social and financial position of the parties
 character of parents
 temperament
 past behaviour of parent to child

Precedents should be resorted to with care because each case is unique .

Indicators from courts: Young children and girls custody is usually given to the mother. A parent who
leads an immoral life may be deprived of custody but adultery alone is not a ground unless it is so bad.
A person who travels a lot may be deprived of custody. Adolescent boys are normally given to the
father on the basis that they need the guidance and advise of their father. Views of the children can
also be taken into account.
24
If a parent drinks heavily, this may count against them. Material wealth does not override the best
interests of the child because an order for
maintenance can be made.

Courts do not want to disturb an existing environment of a child except in exceptional circumstances. If
a parent seizes custody to defeat a maintenance claim , this is frowned upon.

McMall v McCall 1994(3) SA 201 at 204-205.

“In determining what is in the best interest of the child the court must decide which of the parents is
better able to provide and ensure his physical, moral, emotional and spiritual welfare. This can be
assessed by reference to certain factors or criteria which are set out hereunder not in order of importance
and also bearing in mind there is a measure of unavoidable overlapping and that some of the listed criteria
may differ only to nuance. The criteria are the following:
(a) The love, affection or other emotional ties which exist between parent and child and the
parent’s compatibility with the child
(b) The capabilities, character and temperament of the parent and the impact thereof on the
children’s needs and desires.
(c) The ability of the parent to communicate with the child and the parent’s insight into,
understanding, and sensitivity to the child’s feelings.
(d) The capacity and disposition of the parent to give the child guidance he requires.
(e) The ability of the parent to provide for the basic physical needs of the child, the so called
“creature of comfort” such as food, clothing, housing and other material needs – generally
speaking, the provision of economic security.
(f) The ability of the parent to provide for the educational well-being and security of the child
both religious and secular.
(g) The ability for the parent to provide for the child’s emotional, psychological, cultural and
environmental development
(h) The mental, and physical health and moral fitness of the parent.
(i) The stability or other wise of the child’s existing environment having regard to the desirability
of maintaining the status a quo
(j) The desirability or otherwise of keeping siblings together
(k) The child’s preference, if the court is satisfied that in the particular circumstances the child’s
preference should be taken into consideration.
(l) The desirability or otherwise of applying the doctrine of same sex matching, particularly here,
whether a boy of 12 … should be placed in the custody of his father and
(m) Any other factor which is relevant to the particular case with which the court is concerned”.

See Mtengwa vs Mtengwa – 2010(1) ZLR 312 – FEMALE CHILD TO MOTHER BUT NOT A HARD
AND FAST RULE

KOMBAYI VS KOMBAYI HH-320-12: RESPONDENT CAME TO COURT WITH DIRTY HANDS

CHIPOFYA VS CHIPOFYA HH-100-11: COURT CONSIDERED FACTORS SET OUT IN MCALL VS

MCALL 1994(3) SA – CUSTODY GIVEN TO FATHER

SEE MASAWI VS MASAWI – HH- 22-11

25
MUPUDZI VS MUPUDZI HH-24-11 – NO TO SEPERATION OF CHILDREN

CHITONGO V CHITONGO 2000(1) ZLR 76 – SEPERATING OF SIBLINGS

KATSAMBA VS KATSAMBA HH-77-14: NEED TO TAKE INTO ACCOUNT THE BEST INTERESTS
OF A CHILD WHEN SHARING PROPERTY; SEC 7(4) SHOULD BE CHILD CENTERED

JOINT CUSTODY – CHINYAVANHU VS CHINYAVANHU HH-156-09 ; DUBE VS DUBE HH -176-11;

BECKFORD VS BECKORD HH-124-06

AWARD OF CUSTODY TO A THIRD PARTY

Sometimes the custody of a child whose parents are alive can be given to a third party but this is only
done in exceptional circumstances- if their is harm or danger to the child's welfare.

SEE : in Re MAPHOSA HB- 115-07 and MAKUMBE vs CHIKWENENGWERE HB- 42 -03 and
TAWONANHASI SUPRA and NCUBE vs GUNI HH- 121- 09

CUSTODY OF CHILDREN BORN INSIDE WEDLOCK UNDER CUSTOMARY LAW : BEST

INTERESTS OF THE CHILD PARAMOUNT

Under customary law, if the father paid lobola, at divorce the mother had no rights. This position was
changed by the African law ad tribal courts Act o 1969 which made the best interests of the child the
paramount consideration .

This is now provided for in terms of the Customary Law and local courts Act section 5 . It does not
matter now the system of law applicable .

ACCESS

Access as has already been discussed is the right of a non custodian parent to see his/her child, spend
time with the child be it over a weekend, holiday e.t.c.

Under R Dutch common law and customary law, a non custodian parent has right of access to a child. If
custody order is silent on the question of access, it is implied .

See section 6 of the Guardianship of minors act on the rights of a non custodian parent.

Access is meant to keep the natural bond between parent and child. As in custody, each case should
be decided on its own merits because there is a danger of resorting to precedents.

SEE : CRUTH VS MANUEL SUPRA and PISSAS vs PISSAS HH -35-08 ; DUBE VS DUBE: HH-176-
11; CHINYAVANHU VS CHNYAVANHU HH-156-09

VARIATION OF CUSTODY AND ACCESS

Access and custody can be varied by the courts if it is in the best interests of the child. See Njovana -
vs. Chitambo for the test to be applied.

Courts are reluctant to shuffle children from one parent to the other unless there are overwhelming
reasons why this should be so.

26
SEE: SURTEE vs SURTEE HH – 7- 08: Children’s court cannot vary a High Court Order on
custody.

See also : DOMBOKA vs MADHUMA HH- 179- 04 custody given to grandmother by mother of
children and SAMUDZIMU vs NGWENYA HH- 92-08

Erasmus vs Erasmus : HH – 40-2007: Variation of order-parties outside the country, sole

guardianship and custody sought, parties outside jurisdiction of court, so court could not
entertain matter.

ENFORCEMENT OF CUSTODY AND ACCESS ORDERS

The court can direct a police officer in the case that a custody and access order has been made to
enforce the order by physically handing taking the child from the custodian parent and handing it over
to the non custodian parent. See section 7 of the Guardianship of Minors act. Under common law wilful
disobedience of a court order can lead to contempt of court proceedings being instituted.

See Section 8 Guardianship of Minors Act

REMOVAL OF CHILD FROM ZIMBABWE

A custodian parent may want to settle in another country and take the child with him/her. If the parents
cannot agree , since this will also remove the jurisdiction of the court, the High Court will have to make
a decision.

The guiding principle is the welfare of the child concerned. The removal must be in the best interests of
the minor child.

We now have the Child abduction act which is international in nature. See Secretary for justice vs.
Parker ( 1996) Explain act and issue of reciprocating states for enforcement of act.

THE CONVENTION ON THE RIGHTS OF THE CHILD( REFER TO CONVENTION, ARTICLE BY

VICTOR NKIWANE AND CHAPTERS FROM CHILD AND LAW IN EAST AND SOUTHERN AFRICA )

Great concern has been expressed on the rights of fathers of children born out of wedlock : SEE
SOUTH AFRICA’S RIGHTS OF NATURAL FATHERS OF CHILDREN BORN OUT OF WDLOCK ACT
and the INQUIRY PAPER ON SAME ISSUE. BUT NEW CONSTITUTION MAY HAVE RESOLVED
THIS TROUGH EMPHASIS ON BEST INTERESTS OF THE CHILD AS BEING PARAMOUNT.

SEE ALSO HARRIS VS HARRIS HH-20-09

ADDITIONAL CASES

1. Kombayi vs Kombayi HH -320-12 : Custody

2. Kutsanzira vs Master of the HC NO- HH -309-12 Application to divest father who was in
prison from guardianship and to give it to aunt of child- dismissed
3. Chipofya vs Chipofya : HH -100 -11 Custody and access after divorce
4. Ncube vs Guni- HH -121-09 Children left with grandmother while mother went to work in
Australia
5. Sanyangowe vs Chalimba : HH 142 -09 – confirmation of fact that mother is legal guardian
of children born out of wedlock

27
 6. Gova vs Gova – HH-240-13: Discussion of what constitutes the best interests of the child

CHAPTER 4

LEGITIMACY AND ADOPTION

Relevant provisions in the constitution – Section 19 – best interests of the child paramount,
Section 56(3) – Right not to be discriminated against on basis of being born in or out of wedlock

GENERAL LAW
 Legitimate child is one who is conceived or born to parents who are legally married to each
other at the time of conception.( born inside wedlock)
 Illegitimate child ( born out of wedlock ) is child conceived and born to parents not married to
each other.

Pater est quem nuptiae demonstrant - We have already dealt with this maxim under paternity- the man
the woman is married to is presumed to be the father so the children conceived or born during the
subsistence of the marriage are presumed to be legitimate.

Presumption of legitimacy can be rebutted in the ways in which paternity can be rebutted. We have
already dealt with this - sterility, lack of access at the relevant time. If the presumption is rebutted, the
children become illegitimate but only the High Court has power to enter an order declaring illegitimacy
and the child must always be represented by a curator ad litem to protect its interests.

If parents divorce, children remain legitimate.

Correct language is now born inside or born outside wedlock.

SEE ALSO SECTION 2 OF THE BDRA

TYPES OF “ILLEGITIMATE’ CHILDREN AND METHODS OF LEGITIMATION

28
PRE MARITAL CHILDREN ( SPURII )

Sometimes parents who are not married to each other have children, This is very common especially
with more and more people choosing to co - habit before marriage. If the parents subsequently marry,
the children become legitimate ( legitimatio per subsequens matrimonium ) . The legitimation is
automatic and any incapacity the children suffered fall away.

Pre marital children can be legitimated by adoption.

ADULTERINE CHILDREN

The word speaks for itself. An adulterine child is one born out of adulterous sexual intercourse i.e. the
parents one or either of them is married to someone else at the time of conception.

Such children are illegitimate. However if such child is born to a married woman, its presumed to be
legitimate due to the maxim pater est quem nuptiae demonstrant . Only the High Court can issue an
order of illegitimacy if it is proved that the man woman is married to could not possibly be the father of
the child.

In terms of Section 14 of the G.L.A. Act, an adulterine child can become legitimate ( look at section ) .

Section only applies if one or both parents was married at the time of birth. That means a child
conceived when one or both parents are married to someone else but born when its parents are no
longer married to a third party is not covered by this section i.e. if parents subsequently marry - no Zim
case on position under Roman Dutch Law.

INCESTIOUS CHILDREN

* Discuss what is considered incest under Shona/ Ndebele/ Kalanga e.t.c

Incestuous children are born to parents who cannot marry each other due to close blood relationships.
Scientists say children incestuous relationships are likely to be physically and mentally challenged .
issue of legitimation because parents can never validly enter into a marriage .No reason why such
children cannot be legitimated by adoption.

See also Section 75 of the Criminal Law Code for degrees of relationship that are prohibited.

VOID MARRIAGES

Ordinarily a child born of a void marriage is illegitimate. However if one parent at the time of the
marriage had a bona fide belief that marriage was valid at the time of conception, under Roman Dutch
Law, the court can be approached for a declaratory order that the child is legitimate.

PUTATIVE MARRIAGE ( PURPOTED)

This is a marriage which is void ab initio but one of the parents is bona fide in its legitimacy. In an action
to declare the putative marriage void, a declaratory order is also sought to declare the children
legitimate. SEE CHIRAWU ET AL –POSITION PAPER ON UCLUS AND PUTATIVE MARRIAGES

ANNULLED MARRIAGE

29
Children born of a voidable marriage under Roman Dutch Law were legitimate during the period that
marriage existed. Upon annulment of parent's voidable marriage, such children become illegitimate
because the marriage is taken as never having existed.

Situation is covered by Section 14 of the Matrimonial Causes Act.

A child can never be illegitimate in respect of its mother.

LEGITIMACY UNDER CUSTOMARY LAW

Two distinct concepts:

 parental rights and duties towards a child - custody ,maintain and protect child , right to receive
lobolo or pay lobolo.
 Patrilineage - succeed to the father's name and genealogy

See : Shumba vs Shumba HB – 25-05

Children born of lawfully married persons are legitimate. Husband has rights of guardianship, custody ,
maintenance( primarily ) .

Pre marital children - illegitimate in relation to their father who had no rights of custody or guardianship.
These were vested in the guardian of the mother but this changed due to LAMA. Now the father has a
duty to maintain children, Under customary law such children can be legitimated by payment of
chiredzwa/ amalobolo omtwana . This money must be accepted by the woman's father/ guardian and
the natural father then acquires rights of guardianship and children become legitimate under customary
law.

Adulterine children - : They are presumed to be children of the man their mother is married to until the
adulterer comes forward and pays maputiro and acknowledges the children as his. Maputiro is some
form of compensation and if husband accepts, the adulterer becomes entitled to the guardianship and
custody of the adulterine child.

Section 14 of the G.L.A.Act, also applies to customary law situations.

ARTIFICIAL INSEMINATION ( IN VITRO) ( NO ZIM CASES)

Homologous insemination: insemination with the husband's semen. Child legitimate because parents
married.

Heterologous insemination : by a donor - in V vs. R 1979 (3 ) SA 1006 - Child conceived by this

method is illegitimate.

CHILDREN BORN IN AND OUT OF WEDLOCK CASES

1. Exparte Golden NO 1962(2) SA 360

2. Green vs Fitzgerald 1914 AD 88
3. Estate Heinmann and others vs Heinmann 199 AD 99
4. Hoffman and others vs Estate Mechau 1922 CPD 179
5. Exparte J 1958 93) SA 115
6. Lessing vs Lessing 1958 ( 3) SA 115
7. M vs M 1962 ( 2) SA 114
8. Douglas vs Meyers 1991 ( 2) ZLR 1
9. Cruth vs Manuel 1999 ( 1) ZLR 7

30
 ADOPTION
Relevant provisions in new Constitution- Best interests of child paramount; non-discrimination
on basis of being born in or out of wedlock ; Section 80( 2) – Women and men have same rights
regarding the custody and guardianship of children

Roman Dutch Law did not recognise adoption as a legal institution . In Zimbabwe, the issue of adoption
is dealt with by the Children's Act ( Formerly the Children's Protection and Adoption Act ) .

Not going to deal with the matter in great detail coz most of it is regulated by statute.

Any agreement to give custody and control of a child which is not in accordance with the adoption
procedures is null and void and cannot be enforced.

Adoption creates a legal relationship between the adopted child and the parents and they are expected
to carry out all the legal obligations as if the child is their natural child. All rights between the child and
his/her lawful parents are terminated.

Section 59(3)(1) allows a mother to consent to an adoption of a child born outside marriage- SEEMS
TO BE CONTRARY TO NEW CONSTITUTION

ALSO ALL REFERENCE TO ILLEGITIMATE CHILD NEEDS TO BE REMOVED

S 64 - Effect of adoption order

Before the coming into effect of the Children's Act - adopted child could get married to the adopted
parent if the child was over 18 years. Now marriage between an adopted child and an adopted is
prohibited but this does not affect marriages entered into before the prohibition.

The children's court deals with adoption matters. An adoption order can also be rescinded - Section 67

See also Section 72

CASES ON ADOPTION

1. Van Der Weshuizen vs Van Wky and another 1952 ( 2) SA 119

2. In Re Mcleod 1972 ( 2) SA 383
3. Dhanabhakium vs Subramanian and another 1943 AD 160
4. Sibiya vs Commisssioner for the Child Welfare ( Bantu) 1967 ( 4) SA 347

PROTECTION OF CHILDREN

1. In Re ET an others 1992 ( 1) ZLR 300

2. In Re Eight Juveniles 1998 (1) ZLR 362
3. In Re J and another 1998 ( 1) ZLR 209

SEE THE BOTSWANA CASE ON ADOPTION GK VS BOK AND OTHERS – Declared

unconstitutional the provision which stated that consent of the father of a child born out of
wedlock is not required.

31
SA – SEE FRASER VS CHILDREN’S COURT AND OTHERS CCT 31/96 similar position as
Botswana

Chapter 5

MAINTENANCE

Relevant constitutional provisions: Best interests of the child paramount consideration

CHILDREN BORN OUT OF WEDLOCK UNDER GENERAL LAW

Both parents of a child born out of wedlock have a duty to maintain the child each contribution being
determined by the means of the parties so even though we say a child born out of wedlock has no
father, the biological father once paternity is established is legally liable to maintain the child.

CHILDREN BORN OUT OF WEDLOCK UNDER CUSTOMARY LAW

Under traditional customary law the father of a child born out of wedlock had no responsibility to
maintain his child unless he obtained custody. We have already discussed the ways in which the father
can get custody . Colonial courts took view that such a father was not a responsible person for
purposes of the Maintenance act .

However in terms of Section 6 ( 3 ) ( b) of the Maintenance Act : For purposes of determining whether
or not a person who is subject to customary law is legally liable to maintain another person , the court
shall regard the parents of the child as being primarily and jointly responsible for the maintenance of
that child until the child turns 18 or becomes self supporting.

Therefore the parents under customary law are primarily responsible for looking after the children .

32
SEE: DAWSON VS USHAMBA- HH-335-14 CONFIRMATION OF THE FACT THAT THE
RESPONSIBILITY TO LOOK AFTER A CHILD RESTS ON BOTH PARENTS

CHILDREN BORN INSIDE WEDLOCK

Parents have got a duty to look after their children both under customary and general law. Each parent
must contribute according to their means. Duty begins as soon as child is born or adopted.

Whilst living together one spouse who feels that the other is not looking after the children whilst parties
are staying together can actually sue for maintenance but in practice this rarely happens. Most women
say that this will be the end of the marriage if they so much as mention that they are going to court to
claim maintenance.

MAINTENANCE PENDETE LITE

The word is self explanatory. It means maintenance pending litigation. If a divorce action is instituted,
pending the hearing of that action, one parent may apply for interim custody and maintenance pending
the determination of the main divorce action. This is a temporary remedy meant to ensure that a parent
who does not have custody and who is neglecting his/her duty of contribution towards maintenance is
made to contribute and also that the children do not suffer undue hardship until the main divorce matter
is heard.
 Its not necessary for the part who is seeking maintenance pendete lite to show that he/has a
reasonable prospect to succeed in the main action unless they are seeking maintenance for
themselves.
 No need to show that there is a prima facie case for divorce if maintenance is sought only for the
children.
 If an order for maintenance already exists, it is not competent to seek maintenance pendete lite.
Proper thing to do is to seek variation of original order.

See: Lindsay vs Lindsay case

When the final case is heard and a final order is granted, the order for maintenance pendete lite is
discharged and replaced by an order covering the post divorce period.

Divorce does not end the duty of both parents to look after the children until they turn 18 or become self
supporting whichever happens first.

The sins of the parents are not visited on the children so that if any issue arises then the best interests
of the children is the paramount consideration e.g. if one parent commits adultery and has custody of
the children this does not mean that the innocent spouse should not pay maintenance.

In an application for divorce, judicial separation or nullity of marriage its required to also making sure
that adequate maintenance is provided for the children Section 10 ( 1 ) i.e. court may require evidence
to be heard and section 10 ( 2 ) b to order payment of maintenance – Matrimonial Causes Act

Such sum may be a lump sum or periodic maintenance ( section 7 ( 1 ) and to follow the guidelines in
section 7 ( 4 )- Matrimonial Causes Act . This applies to both customary and general law marriages.

Therefore it is clear that despite a divorce, children are entitled to be maintained by their own parents
each according to their means.

STEP CHILDREN

33
Under RD law, no duty on step parent to maintain step child.

In terms of section 83 of the Children's Act step parent has an obligation to maintain step child.

In W vs. W Gubbay held that step parent meant the relationship between a man and the child born to
the man's wife by another man . Accordingly for purposes of the act the wife's illegitimate child is a step
child and the husband is the step parent. Step parent does not include step mother so there is no legal
duty on the latter to maintain a step child.

HOW IS MAINTENANCE CLAIM MADE AND JURISDICTION

Maintenance is dealt with in terms of the Maintenance Act Cap 5:09.

In terms of section 3 of the Act every magistrate court shall be a maintenance court within its area of
jurisdiction for purposes of the act . However one can still apply to the High Court since it has original
jurisdiction although this is discouraged See: Hove vs Maravanyika case

Responsible person is defined in section 2 of the Act.

Who makes the application - See section 4 ( 2)-dependant or some other person having custody of
child e.g. social welfare officer

How is application made : Section 4 ( 1) complaint on oath

What does person who is claiming maintenance have to aver and prove before court makes order:
Section 6 ( 2 ) Court has to be satisfied about these before making a maintenance order.

See : Mubaiwa vs Chigwada HH-246-15

A summons is issued by the maintenance officer calling upon the respondent i.e. responsible person to
appear before the appropriate court on a stated date and show cause why a maintenance order should
not be made against him/her

If a maintenance order is made as part of a divorce order in the High Court, it can be registered with the
maintenance court in terms of Section 18 ( 2 ) of the act. The applicant simply takes the original or
certified copy of the High court order to the clerk of court who registers it and allocates a case number.

Section 10 : Effect of adultery on a maintenance claim

NATURE OF A MAINTENANCE HEARING

Most Magistrates make the mistake of holding a trial instead of an inquiry . Section 13 deals with the
procedure and what the court can do. In reality because of the volume of work many magistrates do not
invoke section. Many maintenance hearings turn into slinging matches .

SEE : HWATA VS ZVINGE HH-592-14; SHOULD BE AN INQUIRY: ALSO CHIFAMBA VS

CHIFAMBA HH -28-15

MAINTENANCE UNDER CUSTOMARY LAW

34
Before the coming into effect of the customary law and local courts act, all maintenance claims under
customary law were dealt with at the community court.

Section 6 (3 ) deals with who is liable under customary law for maintenance and the parents are
primarily responsible for this.

ARREAR MAINTENANCE

In the Musakwa case the Supreme court came to the conclusion that arrear maintenance was not
claimable if there was no prior maintenance order in existence. It is submitted that the SC ignored
section 6 ( 6)(C ) which allows the court to make an award of arrear maintenance. If there is in
existence a maintenance order it can be enforced by any of the ways set out in the act.

RD common law recognised claims for arrear maintenance see Woodhead case and also P vs. C.

It has now been overridden in respect of children born in wedlock by Section 11 ( 1 ) of the Matrimonial
causes Act. See Maravanyika vs Hove

SEE : CHIFAMBA VS CHIFAMBA SUPRA – HC STATED THAT THERE NEED TO BE A PRIOR

COURT ORDER FOR ONE TO CLAIM ARREAR MAINTENANCE

HOW IS THE MAINTENANCE ASSESSED ?

The amount is assessed according to the means of the parties . The parties should be candid with the
court and furnish their income and expenditure. The party who is making the claim furnishes the court
with a list of expenses which is only an estimate .

The court shall have regard to the factors set out in section 6 ( 4 ) .

The classic case and the leading case is the Gwachiwa vs Gwachiwa SC 134-86 case which has led to
what is commonly known as the Gwachiwa formula.

This was an arithmetic formula that the court applied .

Gwachiwa formula: Allocate equal shares of income to each parent and half a share to each child. 2
shares for husband, two shares for wife and one share for child to make a total of five shares . So
hubby gets 2/5 wife 2/5 and child 1/5.

Practically it works as follows:

 Ascertain and add together the total net income of the father's household and the mother's
household. The total gives the total money available per month.
 Calculate what claims there are on that income by allocating two shares each to each adult in
the two households and one share to each child in each of the two household.
 Divide the total amount available each month by the total number of shares. One share will be a
child's share and two shares will represent an adult share.
 Calculate how much money ( if any ) should be paid by the father to the mother as maintenance
in order to ensure that the child who is the subject matter of the dispute receives a child's share.
 Adjust the figures arrived at in step four up or down to allow for innumerable variable factors and
special features which may arise in the case under consideration.

35
The fault factor should not be taken into account. The Gwachiwa formula is only a starting point and the
maintenance can be adjusted upwards or downwards depending on the circumstances . In some cases
it may not even be suitable as a starting point.

Problem that courts face is that many respondents bring fake payslips or proof of income and
Magistrates do not invoke section 13 and 14. Some complainants also exaggerate their claims in the
belief that the court will reduce the figure anyway so why not claim a higher figure in the first place.

CAN A MAINTENANCE ORDER BE VARIED ?

Yes it can and this is provided for in terms of section 8 of the Act .

The Matrimonial causes Act also provides in section 9 for variation , amendment , suspension or
rescission of order FOR GOOD CAUSE SHOWN. SEE SMITvs SMIT

KOK VS MAXWELL HH 236 -14 INTERPRETATION USING THE CONTITUTION

The variation in section 8 of the Maintenance act applies to all orders made by the magistrates court
and all those from the High Court but registered with the Magistrates court and section 9 of the
Matrimonial causes act applies to all orders made by the High Court and the Magistrates court as part
of divorce orders.

The onus is on the applicant to prove that circumstances have changed and that the interests of the
children necessitate a variation and that the respondent has the means an ability to comply with the
variation.

Examples of changed circumstances

 Increase or decrease in income of respondent /applicant
 Increase or decrease in essential obligations
 Inflation/ cost of living gone up
 Natural growth of children since the older the child becomes, the more money is required for
their upkeep

The applicant must not take on new responsibilities e.g. new wives so as to run away from maintenance
payment.

CASES

1. Murimi vs Mchina HH -283-12 : Down ward variation

2. Thorton vs Thorton HH -143-09

HOW ARE MAINTENANCE ORDERS ENFORCED ?

 All maintenance orders must be registered - Section 18 ( 1 ) ( 2 ) ( 3 )
 Order becomes a civil judgement - Section 19 and shall be enforceable in any of the ways set
out in the Magistrates court for the enforcement of judgement - writ of execution, contempt of
court, garnishee order , civil imprisonment .
 Payment through the clerk of court - Section 19 Maintenance Act.
 Payment by employer - Section 6 ( 5 ) - direction against employer.
 Direction takes precedent over any other order of court requiring payments to be made from the
salary of responsible person - Section 7 ( 1 ) of the Maintenance Act
 Section 7 (2 ) of maintenance act - Tax though takes precedence
 Direction having the effect of garnishee order - Section 22( 1 ) of the Maintenance Act

36
 Criminal offence to fail to pay maintenance - Section 23 - ( DISCUSS THE ISSUE OF
MAGISTRATES COURTS ISSUING WARRANTS OF ARREST AGAINST DEFAULTERS ) SEE
CRAWFORD VS THE STATE HH-64-14
 Employer guilty if fails to comply with direction - Section 24

DISCHARGE AND TERMINATION OF MAINTENANCE ORDERS AND/OR DIRECTIONS

 By order of a competent court and never by mutual agreement between the parties
 Court satisfied that there is no longer any reason for order being in place anymore - Section 8
( 7 ) of the Maintenance Act – Maphisa vs Moyo HB-85-15
 If order is made by the High Court and discharged by the Magistrates Court , the order is subject
to automatic review by a judge of the High Court - ( Section 18 ( 4 ) maintenance Act.
 Permanent removal of children from Zimbabwe is not without more good cause for discharge of
maintenance.
 Automatic termination of order - Section 11 of the Maintenance Act. Applies only to orders made
by the Magistrates court and not those from the High Court in terms of the Matrimonial Causes
 Act which have been registered . These are covered by section 8 of the Matrimonial Causes
Act.

SEE ; MAPHISA VS MOYO HB 85/15 FOR DISCHARGE OF MAINTENANCE CLAIM

Note that the Matrimonial Causes Act applies to married persons so those children born out of wedlock
or in terms of an UCLU are covered by the Maintenance Act Section 11.

 Order for maintenance can be extended beyond the child's eighteen years ( See section 11
Maintenance Act and Section 8 Matrimonial Causes Act). See Maeresera and Jesse cases
 If no age limit is imposed, maintenance order continues until child is self supporting and does
not necessarily terminate when child turns 18.

EFFECT OF APPEAL AGAINST MAINTENANCE ORDER

An appeal does not automatically suspend operation of order appealed against - Section 27
Maintenance Act : See Nyereyegona case . Also ne can apply for partial or complete execution.
Section 27 does not apply to orders made in the High Court – Chakras vs Chakras S -30-02

If appeal allowed court has a discretion on repayment of money already paid

For enforcement of maintenance orders outside Zimbabwe see the Maintenance Orders
(Facilities for enforcement) Act

SEE ALSO SEC 28 OF THE ACT

Cases

Murimo vs Tsivai SC 10/86

P vs C 1978 RLR 80
Hora vs Tafamba 1992(2)ZLR 348
37
Dioniso vs Dioniso 1981 (1) ZLR 118
Muzondo vs Muzondo 1985(2) ZLR 240
Kanis vs Kanis 1974 ( 1) ZLR 129
Pahla vs Pahla 1987 (20 ZLR 70
W vs W 1978RLR 429
Musakwa vs Musakwa SC 11/84
Muchada vs Muchada HH-346-86
Quickfall vs Swan 1975 (3) SA 82
Edwards vs Chizema 1992(2) ZLR 14
Marufu vs Moyo 1983 ZLR 386
Black vs Black 1987 ( 1) ZLR 133
Webb vs Webb SC 154/86
Daines vs Daines and another 1980 ZLR 141
Wilson vs Wilson 1981 ZLR 21
Burgess vs Benatar 1975 ( 1) SA 782
Mudzingwa vs Mudzingwa 1989 ( 2) ZLR 182
Chibaya vs Chibaya 1985 ( 2) ZLR 240
Muzoriwa vs Chimowa CS 1/89
Mlambo vs Tshuma SC 3/89
Madonko vs Nkosi SC 9/89
Mutsipa vs Mutsipa SC 76/89
Tshuma vs Sibanda SC 163/89
Cock vs Cock SC 135/90
Laxma vs Laxman SC 177/90
Mutenhure vs Mutenhure HH-300-90
Maeresera vs Maeresera 1988 ( 1) ZLR 193
Mafunda vs Mafunda SC 112/92
Nyereyegona vs Marume SC 92/92
Bapata vs Bapata SC 241/92
Gondo vs Gondo SC 235/92
Acutt vs Acutt HC-H-99/92
Foote vs Foote 1984 ( 2) ZLR 28
Smit vs Smit 1994 ( 2) ZLR 149
Mverechena vs Mverechena 1988 ( 1) ZLR 205
Lindsay vs Lindsay 1992 ( 1) ZLR 323 and 1993 (1) ZLR 195
Taneka vs Taneka 1993 ( 2) ZLR 9
Moyo vs Matsika 1993 ( 1) ZLR 108
Flack vs Flack 1997 ( 1) ZLR 505
Maravanyika vs Hove 1997 ( 2) ZLR 88
Keates vs Keates 1995 ( 1) ZLR 380
Mandeya vs Mandeya HH-93-08: Plaintiff sought maintenance for herself pending receipt of her
share on the disposal of the matrimonial assets. Held that post divorce maintenance is based on
need.
Cormick vs Cormick HH- 15- 2007: Variation, consent paper, agreed that respondent had no
means and applicant could not now be seen to want to claim maintenance

THE CONVENTION ON THE RIGHTS OF THE CHILD

Exercise: Go through the CRC and assess how far our laws conform with it. This exercise requires that
a student go through various sections and compare with Zimbabwean

38
 CHAPTER 6

LEGAL AGE OF MAJORITY AND SEDUCTION; BREACH OF PROMISE TO MARRY AND RETURN
OF ENGAGEMENT GIFTS

Question = what is to seduce ? This is a legal question

Leading astray of whom, by who to where ?

Definition of seduction : When a man has sexual intercourse with an unmarried woman WITH HER
CONSENT . Woman parts with her virtue at the solicitation of a man ( Woman is seen as a weakling . Is
this fair ? )

Rape : Sexual intercourse with a woman WITHOUT HER CONSENT .

Therefore one of the major differences between rape and seduction revolves around consent.

39
The delict is sui generis - man cannot say woman voluntarily consented to injury . Volenti non fit injuria
is not a defence.

SEDUCTION UNDER GENERAL LAW

Under General Law the following are requisites for seduction:

 Sexual intercourse= Onus is on the woman alleging seduction. If the man admits intercourse,
the woman succeeds in her claim on the basis of her allegation and the man's admission.
 If man denies intercourse, them woman must prove that sexual intercourse took place ( Discuss
with students what are the ways in which a woman can prove intercourse ). Proof of a degree of
penetration sufficient to sustain a charge of rape will suffice .
 Penetration is essential but not ejaculation. It is also not necessary that the ejaculation results in
the rapture of hymen

CORROBORATION

Early SA decisions were of the view that woman's evidence should be corroborated by some
independent evidence as a cautionary rule . ( How could this be done ? )

Mayer - vs. - Williams : In this SA case , the court held that as a matter of law courts should not insist
upon corroboration but as a matter of practice courts should warn itself on the inherent dangers of
acting on the evidence of a single witness.

In Zimbabwe, in terms of the civil evidence act, courts can accept the evidence of a single competent
and credible witness.

( 2 ) PRESUMPTION OF SEDUCTION

Once sexual intercourse is established, there is a presumption that the woman was seduced .
Presumption can be rebutted if the man can show that infact the woman was the seducer or prostituted
herself but if woman accepts gifts or presents without proof that she bargained away her virginity that
does not rebut the presumption.

Sometimes woman goes on to have sexual intercourse with someone else after the seduction but this
does not bar her claim. LOSS ACCRUES AT THE TIME OF SEDUCTION .

( 3 ) VIRGINITY

It is difficult to rebut this presumption because if woman proves sexual intercourse and her spinster
status, she is presumed to be a virgin. This can be rebutted by showing prior immoral conduct on the
part of the woman.

OTHER DEFENCES
 If woman continues to stay /cohabit with a man in the full knowledge that the man is unable or
unwilling to marry her . Claim extinguishes after a long time. If woman continues to stay with a
man believing that he will marry her, her action remains intact.
 Some man offer to marry the seduced woman but this is not a defence and a bar to a claim for
damages.

DAMAGES
 Damages are meant to compensate the seduced woman for the loss of her virginity
 Diminished prospects of making a suitable marriage
40
 Social standing of the parties is looked at and also any relationship of trust between the
seduced woman and the seducer . If seducer holds himself to be single, its an aggravating
factor , also look at the character of the girl and whether pregnancy resulted

SEDUCTION UNDER CUSTOMARY LAW

Under customary law , the delict of seduction is committed not against the woman but against the father
or the guardian when the seducer has sexual intercourse with the unmarried woman without consent of
the father or the guardian.
( Does this mean that if father / guardian consents to the sexual intercourse of a daughter who is say
17 years of age , then that is not rape even if the daughter does not want )
 Virginity is not a requirement under customary law
 Seducer still liable even if he offers to pay lobola. In the olden days there was talk of DAMAGE
so seducer must first pay the damages before lobola. These are two different payments.
 Damages are based on the assumption that seduction diminishes the woman's chances of
marriage and the amount of lobola that a man would pay ( Is this true ) . The guardian/father is
compensated for loss and any other loss he may incur from the seducers act

THE LEGAL AGE OF MAJORITY ACT 15/82 ( NOW PART OF THE GENERAL LAW AMENDMENT
ACT )

LAMA AND ITS EFFECT ON SEDUCTION

In Katekwe - vs. - Muchabaiwa : The SC ruled that as a result of LAMA , the father/ guardians have
lost the right to sue for seduction for daughters who are majors at the time of seduction. Under
customary law , the delict is only available to the father/guardian if the daughter is a minor at the time of
seduction.

REQUIREMENTS:
 Proof of sexual intercourse between the girl and the man
 minority status of the girl at the time of seduction
 sexual intercourse without the guardian's consent

Evidence of overt sexual interest raises the presumption of sexual intercourse. There is no requirement
for corroboration. The evidence of a single witness will suffice.

QUANTUM OF DAMAGES
 If girl was a virgin this increases the damages. Virginity is presumed until the contrary is shown.
 Age and character of the girl
 Whether pregnancy occurred- If it did then damages increase
 Social standing of the parties
 Number of times sexual intercourse took place
 If there was a relationship of trust between girl and seducer e.g. teacher / pupil
 Girls previous conduct e.g. immorality or pregnancy by other man

CLOSER ANALYSIS OF LAMA

LAMA attracted controversy with some people even blaming it for the 1982 drought. It was seen
especially in male quarters and even by some women as a ticket to promiscuity and loss of respect by
kids of their parents.

Such was the outcry that in 1984, the government came up with a proposed legal age of majority act
amendment of 1984 which has since died a natural death. The proposed amendment was to the effect
41
that notwithstanding the provisions of LAMA , a person who would in terms of customary law be
regarded as a guardian of a woman should be entitled to claim lobola in respect of the marriage. The
amendment also sought to give the person who would have been the guardian of the woman at
customary law the right to claim seduction damages.

The proposed amendments would have effectively returned African women to a quasi perpetual
minority status. The woman who was 18 years for example could marry without the consent of the
guardian but required consent to have sexual intercourse with the man before marriage.

WHAT IS THE EFFECT OF THE MAGAYA VS MAGAYA 1999 ZLR 100 JUDGEMENT ON
SEDUCTION DAMAGES ?

Apart from the issues of inheritance, in the Magaya case, the SC stated obiter that the decision in
Chihowa and Katekwe were wrongly decided on the question of the effect of majority status on
customary law of seduction and the issue of lobola.

The court’s opinion was OBITER therefore only persuasive but not binding.

Some critiques of the SC obiter opinion state that :

 Court misread the decision in Katekwe especially when it failed to make a distinction between
seduction under customary and general law. Emphasis in Katekwe was that the woman could
sue for herself BUT only under general law. Therefore courts did not bestow rights to women
which they never had under customary law.
 LAMA made it clear that majority status applied to both systems i.e customary and general law.
If it is accepted that the basis of seduction under customary law was a dimution in the value of
lobola, it follows that the father loses right to claim seduction damages if he loses right to claim
lobola.
 Mcnally J as he then was suggested that the consent of the father ( and therefore payment of
lobola) is necessary for a customary law marriage. This is not so. Section 4 of the Customary
Law and Local Courts Act as reads as follows, “ subject to any enactment affecting such
capacities, the capacity of any person to enter into any transaction or to enforce or defend any
rights in a court of law or to inherit rights to property shall be determined in accordance with the
General Law of Zimbabwe.
 Only the customary marriages act can affect the woman’s capacity to enter into a marriage. Act
does not provide for the consent of the father. Where consent is specifically mentioned, in
Section 5, it specifically refers to the consent of the woman’s guardian. Since a major woman
has no guardian, provisions are inapplicable to her situation.
 It can be argued that the requirement for lobola is by virtue of customary law. However,
customary law cannot override statute law like Section 5 Marriage Act and Section 15(3) of the
General Law Amendment Act. Customary marriage solemnization is not an act of the application
of customary law.
BUT THE QUESTION OF WHETHER OR NOT EVERY GIRL WHO IS 18 AT THE TIME OF
SEDUCTION CAN SUE FOR SEDUCTION DAMAGES IS STILL CONTROVERSIAL. ALSO
ISSUE OF LOBOLA, THAT A WOMAN CAN ASK A MAN TO PAY AND IF HE AGREES THEN
HE IS BOUND IS CONTROVERSIAL ESPECIALLY WHEN WE NOTE THAT THE LAW GIVES
LIMITED RECOGNITION TO AN UNREGISTERED CUSTOMARY LAWUNION BUT THE
UCLU COMES INTO BEING UPON PAYMENT OF LOBOLA.

CASES ON SEDUCTION

One of the leading texts on seduction is by Van Den Heever and he basically reiterates the three
requisites of seduction under general law:
42
 That the woman has been seduced
 There has been sexual intercourse
 The woman was a virgin at the time of seduction

BULL - VS - TAYLOR 1965 ( 4 ) SA 29

An action for seduction is available to a virgin who has been seduced - that is who has parted with her
virtue at the solicitation of a man and the presumption is that she fell as a result of the man's seductive
effort. The statement that the underlying idea of seduction is LEADING ASTRAY is also acceptable
provided it is understood that the LEADING ASTRAY of a woman from the path of virtue and that this
not the means - deceitful or otherwise - by which it is achieved is the essential feature of seduction.

Seduction is presumed on the part of the man

Van Der Heever : Virtue is presumed until the contrary is proved . Consequently the presumption is that
the woman fell as a result of the man's seductive efforts.

Bensimon - vs. - Barton Innes CJ: Seduction remedy is available to a virgin who has been seduced -
that is who has parted with her virtue at the solicitation of a man.
Voet 47: 10: 7 - A man was liable to an action who by blandishment or solicitation assailed the chastity
of a female or procured a chaste woman to become unchaste.

SEE ALSO

1. Mudehwe vs Mukondomi 1991 ( 2) ZLR 222

2. Machokoto vs Mabika 1991 ( 2) ZLR 159
3. Mabiki vs Muchenje SC 157/95
4. Bensimon vs Barton 1919 AD 13

CONTRAST WITH
5. Claasen vs Van Der Watt 1969 ( 3) SA 68
6. Scholtemeyer vs Potgieter 1916 TPD 188
7. Delport vs Ah Yee 1913 EDL 374
8. Bhazuwere vs Munene 1994 ( 2) ZLR 351
9. Kashiri vs Muvirimi 1988( 1) ZLR 270
10. Agere vs Nyambuya 1985 ( 2) ZLR 336 – LAMA has no retrospective effect.

CUSTOMARY LAW SEDUCTION CASES

11. Gomwe vs Chimbwa 1983 (2) ZLR 121

12. Katekwe vs Muchabaiwa
13. Muparanyama vs Mhuka SC 242/92
14. Arendse vs Sakiige 1989 ( 1) SA 763
15. Chatumba vs Makusha SC 96/90

BREACH OF PROMISE TO MARRY UNDER GENERAL LAW

The simple definition of a promise is an undertaking to do something or perform an act in the near
future. Under the old Roman Dutch Law a person could be ordered to fulfil a promise to marry.
However in modern times, this could be done away with. Be that as it may, the ditched party can sue for

43
damages for breach of promise to marry if the proposed promise is broken off without just cause. Party
has to prove that there was a promise to marry .

BREACH
 Contractual damages for actual breach
 Delictual damages for the manner in which the promise is broken - Contumelia
 Applies to both men and women.

EXAMPLES:
 A promises to marry B and they prepare for the wedding. The Priest asks A the man whether he
will take B as his lawful wedded wife. In front of guests , A says '' No I have changed my mind ''
and walks off.
 If C Promises to marry B and they arrange an engagement party. C does not pitch leaving a red
faced B to explain to the guests what has happened.
 D promises to marry E but then goes on to place an advert in the largest selling newspaper that
she is not going to marry E at all. E wakes up to telephone calls from friends and relatives
asking him what happened.

Test for contumelia: Were the circumstances hurtful or injured the innocent party's feelings = whether
reputation of the innocent party was ruined in the eyes of ordinary reasonable people - the reasonable
man test . If there is no contumelia, one can only recover damages under contract.

DEFENCES

General :
 Insanity - If one party is insane for example or discovers that the other person is insane.
 Fear - If you do not marry me, I will kill your whole family or I will kill myself.
 Mistake
 Drunkenness :

Defendant would alleging that they did not exercise their free will.

Special defences :
 Just cause : Depends on circumstances of each case - If something happens or if a discovery is
made that the repudiation will be justified in thinking that a happy marriage will ensue.

VOET : He lists the following as being just cause

 Change of religion- A marries a fellow Buddhist who wakes up the following morning to say that
she is now a Hindu.
 Disgraceful or immoral and intolerable behaviour by one party
 Incapacity to have children
 Existence of an STI ( HIV/AIDS) ?
 Prolonged insanity
 Incompatibility or dislike of each other

OTHER SPECIAL DEFENCES

 If to the plaintiff's knowledge , the defendant is already married, then she/he cannot claim
because it will be contra bonos mores. If innocent party is unaware of marriage , action not for
breach since promise is a nullity and based on fraud.

ASSESSMENT OF DAMAGES

44
When making a claim for damages, the claims for delictual and contractual damages should be
separated i.e. state the cause of action separately and claim separate amounts though claim can be in
one summons.

Contract: Recover all actual damages or loss suffered as a result of the breach. Also prospective or
restitutionary damages but both cannot be claimed . CANNOT APPROBATE AND REPROBATE
Prospective : Give the innocent party the material or financial position he or she would have enjoyed
had the marriage taken place.

Restitutionary: Give him/her the material or financial position he/she could have enjoyed if no promise
of marriage had been made. ( If plaintiff after a promise of marriage then decides to go to the gym ,
have facials everyday , be so happy and eat out every day can she claim these as damages)

Delictual : Compensate jilted party for the embarrassment hurt and injured feelings . Any contumelia
aggravates the delictual damages.

CASES

1. Walker vs Van Wyk 1978 RLR 175

2. Bull vs Taylor 1965 ( 4) SA 29
3. Guggenheim vs Rosebaum 1961 (4) SA 21
4. Schnaar vs Jansen 1924 NRL 218
5. Claassen vs Van Der Watt 1969( 3) SA 68
6. Mupazviriwo vs Kubeta- HH- 227-13 Factors to be considered in cases of breach of
promise to marry- appellant was unable to prove that there was a promise made

BREACH UNDER CUSTOMARY LAW

Colonial courts took the view that an action for breach of promise is unknown at customary law.

Notwithstanding this, courts are now awarding damages under customary law.

CASES: CUSTOMARY LAW

1. Bhazuwere vs Munene 1994 (2) ZLR 351
2. Muparanyama vs Mhuka 1992 SC 242
3. Mazarire vs Magoronga 1992 (1) ZLR 282

RETURN OF ENGAGEMENT GIFTS

Under traditional customary law, gifts were exchanged before an aunt ( Nduma ) is there such a custom
among the Ndebele, Kalanga e.g.

The gifts are as follows:

 Gifts in contemplation , expectation or anticipation of marriage
 affectionate gifts of some value e.g. jewellery
 gifts of unusually high value

Returnable if : engagement terminated by mutual consent or a marriage cannot take place for good
reason not attributable to the fault of either party - includes return of engagement rings

Unlawful termination - Owing to misconduct of either party, innocent party is entitled to recover all gifts
in contemplation of marriage and guilty party has no right to claim any of his/her gifts.

45
Affectionate /high value gifts- taken as donations and not in contemplation of marriage so they are not
returnable . Ownership passes at time of donation .

Married person to lover - In contemplation of married person getting divorced and marrying lover. In pari
delicto - contrary to public policy so void. Position of possessor is stronger and party who gives it cannot
claim if marriage does not materialise.

Levin vs Levin and another 1960(4) SA 469

Pietzsch vs Thompson 1972(4) SA 122

CHAPTER SEVEN : FORMATION OF MARRIAGES

Relevant Constitution provisions: Section 26- No marriage is entered into without the free and
full consent of the intending spouses and there is equality of rights and obligations of spouses
during the marriage and at its dissolution and In the event of dissolution of marriage by death or
divorce, necessary provision is made for the protection of children and spouses and Section 78-
every person who has reached the age of 18 has the right to found a family but question is what
does found a family mean?

MARRIAGE AND THE LAW

46
TYPES OF MARRIAGE IN ZIMBABWE
 Monogamous marriage under the Marriage Act Chapter 5: 11
 Potentially polygnous marriage under the Customary Marriages Act Chapter 5: 07
 Unregistered customary law union : See South Africa’s Recognition of Customary Marriages
Act and the case of Ngwenyama vs Mayelane and another (474/11) ( 2012) ZASCA 94
averment that second marriage was null and void as the husband had not consulted first
wife and there was no contract entered into governing the proprietary consequences of
the marriage- this is a requirement in terms of the act

MARRIAGE ACT
 All Zimbabweans competent to marry under this marriage.
 Governed by General Law. Proprietary consequences for Africans used to be governed by
customary law by virtue of section 13 of the Customary marriages act which has since been
repealed by Act 6/97
 One spouse at any given time – See Makwiramiti vs Fidelity Life Insurance and Pension and
Provident Rules Funds SI

CUSTOMARY MARRIAGES ACT

 Marriage can only be between Africans - see definition section
 Governed by customary law unless there are compelling reasons to the contrary
 Potentially polygynous marriage

UNREGISTERED CUSTOMARY LAW UNION : BUT IS NON-RECOGNITION UNCONSTITUTIONAL?

 Invalid marriage except for certain limited purposes. Meets all requirements of an African
marriage except registration - Section 3 ( 1 ) of the customary marriages act
 Valid for the purposes of guardianship, status of children, custody , inheritance under customary
law - Section 3 (5 ) Customary marriages act. Children born under this union enjoy the same
rights as children born under registered customary law marriage. For purposes of customary law
such children presumed to be legitimate and falling under the guardianship of their father.
 Regarded as valid for purposes of maintenance of wife - Maintenance Act
 Husband can now recover adultery damages from his wife’s seducer through case law-
Carmichel vs Moyo case
 There is no divorce since parties are not marries to each other
 Wife’s father cannot sue for lobola unless husband agreed to pay lobola and defaulted .SEE
MUTAISI VS MUZONDO HH-250-99 AND MANGWENDE VS MACHODO HH 755-15 CLAIM
FOR PAYMENT OF OUTSTANDING LOBOLA WAS DISMISSED
For pension see: Katiyo vs Standard Chartered Bank Pension Fund but also see Chinho vs
Chinho HH -96-2006

EFFECTS OF LAMA ON CUSTOMARY MARRIAGES

Before LAMA came into force the requirements of a customary law marriage were as follows:
 Intending spouses must agree or consent to marry each other
 the guardian of the woman must consent to the marriage
 the intending husband and the guardian of the woman must reach an agreement as to lobola
payments
 there must be a formal hand over of the woman by her guardian .

Because of LAMA , a woman reaches the age of majority at 18 years and since she will be considered
as having no guardian , she has unrestricted freedom to marry. An agreement as to roora is no longer a
legal requirement under customary law for a woman who is 18 years old. OBITER expressed in
Katekwe vs Muchabaiwa.
47
COHABITING

Cohabiting is when a man and woman stay together without registering marriage or without lobola
having been paid.

Because of LAMA , three of the essentials of a customary law union have been done away but the
consent of the parties is still required. Does that mean that if two adults governed by customary law
who agree to stay together as man and wife qualify as an unregistered customary law union ?

Public policy would seem to militate against such unions being declared valid. They are just as good as
kubika mapoto.

BUT SEE : Karambakuhwa vs Mabaya SC 158/87

FORMATION OF MARRIAGE
 Sui generis contract
 Two persons of opposite sex who are competent to marry and competent to marry each other
marry
 Marry in terms of a ceremony prescribed by law ( Magistrates court ) or before a marriage officer
.
 Agree to take each other as husband and wife to the exclusion of all others until death or
divorce or some order of a competent court does them part.
 Create a legal relationship

The essential requirements would seem to be therefore :

 Competency of the parties to marry and to marry each other in particular - e.g. a father cannot
marry his own daughter
 the formalities of the marriage
 the consent of the parties to marry each other.

COMPETENCY TO MARRY ( REFER TO NEW CONSTITUTION FOR MARRIAGE AGE)

 absolutely incompetent - unable to marry anyone at all
 SECTION 22 Marriage Act now unconstitutional – Mudzuru case
 Section 23 Marriage Act NOW UNCONSTITUTIONAL –Mudzuru case
 Under the Customary Marriages Act - Kuzvarirwa - pledging of a girl or woman is prohibited. It
would seem that there is no legal age limit and as long as the parents/ guardian agree.

INCOMPETENCY TO MARRY
 Insane or mentally challenged people - absolute incompetence to marry - unable to understand
or comprehend the nature of contract entering into- marriage void ab initio
 Even if able to appreciate and understand nature of marriage contract but if consent motivated
by insane delusion caused by mental disease- marriage void ab initio.
 Same position under both customary and general law as regards insanity.
 If married under Marriage Act cannot enter into another marriage of whatever form whilst that
particular marriage is still subsisting ( most man do it ) If one does so this is bigamy and the
culprit can face criminal charges and either the culprit, innocent parties can bring an action for
nullity of the marriage . See : Sibanda vs Sibanda and also Criminal Law Code Section
104(What if the culprit enters into an UCLU as opposed to a valid marriage)
 Under customary law a woman cannot enter into another marriage but man can do so under the
Customary Marriages Act as long as he discloses that he has another wife or wives. Marriage

48
 Certificates indicate the number of the wife. Failure to disclose that he already has other wives
renders marriage he is contracting void ad initio.
 If married under the Customary marriages Act cannot marry anyone else in terms of the
Marriages Act while marriage is still subsisting but same parties can elevate Customary marriage
into a monogamous one i.e. they marry each other again but this time under the Marriage Act.
 If married under the Marriage Act cannot contract a second marriage with someone under the
Customary marriages Act.
 If married under the Marriage Act cannot downgrade it to a Customary marriage act with same
person.
 Two people of the same sex cannot marry . In SA courts have held that sex of a person is
determined once and for all at the time of his birth and a successful sex change operation
cannot alter the position. ( Should Zim follow this approach )
 Persons who are related within a certain degree of affinity prohibited from marrying - Section 24
Marriage Act and section 7 of the Customary law and local courts Act

PROHIBITED DEGREES OF MARRIAGE

Roman Dutch Common Law: Descendants and ascendants in the direct line- Ad infinitum - father /
daughter , mother/ son, mother/grandson, grandfather/grand daughter - no distinction between
legitimate and illegitimate descent .

If related to a common ancestor in the first degree of descent - brother/sister, half - brother / half -
sister , uncle/ niece , grand uncle/ grand niece. Cousins can marry because they are more than one
degree removed from the common ancestor

Under Customary law: ascendants and descendants in the direct line . Incestuous relationship cannot
be turned into a marriage so close blood relationships whether direct relationships or collateral
prohibited from marrying.

If remotely connected by blood and wish to marry have to under go kucheka ukama ceremony.

Under Roman Dutch common law - man or woman cannot marry any of the descendants or ascendants
in the direct line ad infinitum of former spouse - man cannot marry former wife's - grand mother, mother,
daughter, grand daughter and so on ad infinitum. Woman - grandfather, father, son , grandson and so
on ad inifinitum.

COLLATERAL RELATIONS CREATED BY AFFINITY - Man can marry former wife's collateral
relations . Woman - can marry former husband's brother, uncle , brother's son - Section 24 of the
Marriage Act- abolished common law position which stated that a man could not marry blood relations
of former wife whom she herself would have been prohibited to marry had she been a man , and those
blood relations of her former husband whom he would have been prohibited from marrying had he been
a woman.

Relations of one spouse can marry relations of the other spouse.

Under customary law relations by affinity are not so clear - generally a man or woman cannot marry any
of the ascendants or descendants of his former spouse or spouse. Thus relationships in the ascending
or descending line ad infinitum are prohibited from marrying each other under customary law.

No prohibition of marriage between collateral relations created by marriage - man can marry his wife's
sister, cousin . Woman can marry her former husband's brother.

No marriage can take place now between an adopted child and parent - already covered this.
49
FORMALITIES UNDER THE MARRIAGE ACT
 Solemnization only by a marriage officer - Section 8 ( 1 )
 Ever Magistrate by virtue of office is a marriage officer - Section 3
 Minister of religion has to apply to be designated as a marriage officer - Section 4 ( 1 )
 If person not marriage officer marriage void ab initio but Minister if satisfied that person bona
fide may direct in writing that person was marriage officer for that particular period so all
marriages will be valid - Section 5 ( 1 )

PUTATIVE – MURINGANIZA VS MUNYIKWA HB 102/03

Marriage which is void by failure to comply with formalities is a putative one if parties bona fide believed
in validity. Children can be declared legitimate by court exercising its common law powers.
 Requirements before a marriage can be solemnised - Section 9
 Can be solemnised in any suitable place in presence of parties and two witnesses over the age
of 18 years - Section 25( 1 )
 No marriage by proxy - Section 25 ( 3 )

WHEN DOES A MARRIAGE COME INTO BEING

When the parties have said their vows and the marriage officer has not pronounced them man and
wife?

After the declaration by marriage officer.

In the Australian case of QUICK vs QUICK : When husband began putting ring on finger , woman flung
it away and said to man I WILL NOT MARRY YOU and ran off. The officer had not pronounced them
man and wife but they had both said I WILL to the question if they would take each other as husband
and wife.

Court held that they were married since under common law all what is required is mutual acceptance
before a marriage officer that they would take each other as husband and wife . Marriage tie created
when woman takes man as lawfully wedded wife the declaration by the marriage officer being merely to
confirm the state of affairs.

FORMALITIES UNDER THE CUSTOMARY MARRIAGES ACT

 Marriage solemnised only by a Customary marriage officer - Section 2 Interpretation of marriage
officer
 Two witnesses who are majors are required.
 No requirement to publish notice of intention to marry or get marriage licence but regulations by
Ministry of Justice require parties to publish notice of intention to marry. Notice to be displayed
for four weeks. Parties may obtain a special licence to be issued only in exceptional
circumstances.
 Regulations do not have force of law because they have not been promulgated but parties
intending to marry must comply with them.
 Section 7 provides the circumstances under which marriage officer can marry a couple. Section
7 ( 1 ) (a ) on marriage consideration ( lobola ) and section 7 ( 1) ( c ) on consent of the
guardian have been done away with by implication due to LAMA if woman is over 18 years AND
ALSO DUE TO THE NEW CONSTITUTION
 SEE: CHIVISE VS DIMBWI – Validity is not tested by how long marriage has endured

50
CONSENT OF THE PARTIES

Consent is required otherwise can be annulled.

Both parties must consent but consent can be vitiated by :

 insanity
 duress
 mistake about identity but not about the qualities of the other person
 Drugs and alcohol
 Mental disorder – Lange vs Lange – hallucinations

Person unable to understand nature of the ceremony or obligations they are undertaking. Marriage is
Void.
 Metus or fear which includes any form of duress - marriage is voidable at the instance of the
coerced party. Duress or fear might be come from a third party and again each case must be
dealt with on its own merits. The fear must relate to consequences of not going through with the
marriage.
 Marriage cannot be annulled on the grounds of fraud, misrepresentation or mistake unless a
party is mistaken as to the identity and also nature of transaction e.g. if believes its just an
engagement and not a marriage, or that marrying C and yet in actual fact marrying D. Innocent
party can have marriage annulled.
 If mistaken about effects, such mistake does not vitiate consent.
 Qualities - if a man believes he is getting married to a virgin who turns out not only to be a non
virgin but has three children with different fathers and has paid numerous fines for soliciting, is
not a basis for the annulment of a marriage. See Stander vs Stander – Child born out of an
illicit affair is not ground for annulment.
 Mistake about religion is not a basis for annulment - Tell prospective husband that you are a
Catholic and then you turn out to be a Sikh.

There are two exceptions, common law and statutory

COMMON LAW EXCEPTIONS

 If wife was unknown to the husband pregnant by some other man due to illicit intercourse at the
time of marriage. Basis of fraud - woman wants to hoist another man's child on an unsuspecting
husband.
 Permanent impotence at the time of marriage - impractical impossibility to consummate marriage
at the time of marriage . If after marriage or is curable then marriage will not be annulled.
Marriage rendered voidable and not void on basis of error substantia - mistake as to some
essential attributes. If wife knew about impotence at time of marriage she cannot be heard to cry
foul.
 Sterility - conflicting decisions – unaccompanied by incapacity for sexual intercourse see Venter
vs Venter and Van Niekerk cases

STATUTORY EXCEPTIONS
 Wilful refusal to consummate a marriage - ground for annulment at the instance of the innocent
spouse- fact that sex took place before marriage has no effect because what matters is at the
time after marriage.( Section 13 ( 1 ) (a ) Matrimonial causes Act
 Mental defect - Section 13 ( 1 ) (b) Matrimonial causes Act
 Qualification - Section 13 ( 2 ) Matrimonial causes Act

Spouse cannot get a decree of nullity under section 13( 1) ( b ) if she discovers that partner was
mentally defective at time of marriage or before but nevertheless proceeded to have sexual intercourse
with partner after making discovery. Can still proceed under common law on the ground of insanity.
51
* The Old Matrimonial Causes Act provided that marriage could be rendered voidable on the ground
that the Defendant was suffering from an STI at the time of marriage which STI is communicable.

MARRIAGE OF MINORS – REFER TO NEW CONSTITUTION ON AGE OF MARRIAGE ALL

SECTIONS BELOW NOW UNCONSTITUTIONAL AND ALSO THROUGH THE CONSTITUTIONAL
COURT DECISION IN Mudzuru and another vs MOJ and others CCZ 12/2015 SEE RULING
BELOW
 Section 21 of the Marriage Act
 Section 22 ( 1 )
 Section 22 ( 2 )
 Section 23
 Section 20

DISPOSITION
The court makes the following order:
1. The application succeeds.
2. It is declared that s 78(1) of the Constitution of the Republic of Zimbabwe Amendment
(No. 20) 2013 sets eighteen years as the minimum age of marriage in Zimbabwe.
3. It is further declared that s 22(1) of the Marriage Act [Chapter 5:11] or any law, practice
or custom authorising a person under eighteen years of age to marry or to be married is
inconsistent with the provisions of s 78(1) of the Constitution and therefore invalid to the
extent of the inconsistency. The law is hereby struck down.
4. With effect from 20 January 2016, no person, male or female, may enter into any
marriage, including an unregistered customary law union or any other union including one
arising out of religion or religious rite, before attaining the age of eighteen (18) years.

GROUNDS FOR ANNULMENT

VOID MARRIAGES

These are marriages which are null and void abinitio. Marriage is a total nullity and produces none of
the incidence and consequences of a valid marriage . Chn illegitimate and wife does not acquire the
husband's domicile , no rights and duties of reciprocal maintenance and no inheritance of each others
property unless its by will and sexual relations with a third party does not constitute adultery.

Courts have power to declare the children of such marriage legitimate if one party bona fide believed
that the marriage was valid at the time the children were conceived.
Action can be brought by any interested party BUT IF PUTATIVE SEC 2B OF THE BDRA COVERS
CHILDREN

EXAMPLES OF VOID MARRIAGES

 Lack of compliance with prescribed formalities
 Same sex marriage including where there has been a sex change operation.
 Bigamy : SEE ALSO KARIMATSENGA VS TSVANGIRAI AND ANOTHER HH-369-12 ,
MANDIMIKA VS MANDIMIKA AND MAKWIRAMITI CASE ; Morten vs Morten HH-339-13-
Philipino national
 Mistake as to nature of ceremony or identity of party
 Insanity or mental defect at the time of marriage

52
 Relationships within the prohibited degree of relationships : See SECTION 75 of the Criminal
Code

IS THERE A DIFFERENCE BETWEEN A VOID AND PUTATIVE MARRIAGE? NOT EVERY

MARRIAGE CAN BE PUTATIVE BECAUSE FOR INSTANCE TWO MEN CAN NEVER LEGALLY
MARRY IN ZIMBABWE EVEN THOUGH ONE OF THEM MAY HAVE A BONA FIDE BELIEVE IN
VALIDITY OR PROHIBITED DEGREES CAN NEVER MARRY SO IT SEEMS PUTATIVE OCCURS
WHERE THERE IS NO OTHER IMPEDEMENT THAT EXISTS E.G BIGAMY

75 Sexual intercourse within a prohibited degree of relationship

(1) In this section
“first cousin”, in relation to any person, means the child or any descendant of the child of the uncle or aunt of
such person;
“second cousin”, in relation to any person, means the child or any descendant of the child of the great-uncle
or great-aunt of such person.
(2) Where sexual intercourse takes place between
(a) a parent and his or her natural child, whether born in or out of wedlock, or adopted child, whether the
child is under the age of eighteen years or not; or
(b) a step-parent and his or her step-child, whether the step-child’s parent and step-parent are married under
the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or are parties to an
unregistered customary law marriage, and whether or not the child was over the age of eighteen years at
the time of the marriage; or
(c) a brother and sister, whether of whole or half blood; or
(d) an uncle and his niece; or
(e) a grand-uncle and his grand-niece; or
(f) an aunt and her nephew; or
(g) a grand-aunt and her grand-nephew; or
(h) a grandparent and his or her grandchild; or
(i) subject to subsection (3), any person and his or her first or second cousin; or
(j) any person and an ascendant or descendant of his or her spouse or former spouse, whether the person
and his or her spouse or former spouse are or were married under the Marriage Act [Chapter 5:11] or
the Customary Marriages Act [Chapter 5:07], or are or were parties to an unregistered customary law
marriage; or
(k) any person and his or her ascendant or descendant in any degree; or
(l) any person and a descendant of a brother or sister, whether of whole or half blood;
and either or both of the parties know or realise that there is a real risk or possibility that they are related to each
other in any of the foregoing degrees of relationship, either or both parties to the intercourse, as the case may be,
shall be guilty of sexual intercourse within a prohibited degree of relationship and liable to a fine up to or
exceeding level fourteen or imprisonment for a period not exceeding five years or both.
(3) It shall be a defence to a charge of sexual intercourse within a prohibited degree of relationship as
between first or second cousins for the accused to prove
(a) in the case of a person who is not a member of a community governed by customary law, that the
cultural or religious customs or traditions of the community to which he or she belongs do not prohibit
marriage between first or second cousins; or
(b) in the case of a person who is a member of a community governed by customary law, that the cultural or
religious customs or traditions of the particular community to which he or she belongs do not prohibit
marriage between first or second cousins.
(4) In determining for the purposes of subsection (3) whether or not a person is a member of a community
(a) whose cultural or religious customs or traditions do not prohibit marriage between first or second
cousins, a court shall have regard to the evidence of any person who, in its opinion, is suitably qualified
by reason of his or her knowledge to give evidence as to the cultural or religious customs or traditions of
the community concerned; or
(b) governed by customary law, regard shall be had to all the circumstances of the person’s life, including
(i) whether or not the natural parents of the person were married under the Customary Marriages
Act [Chapter 5:07] or were parties to an unregistered customary law marriage;
53
(ii) whether or not the person lives among other members of such a community and is regarded by
such other members as belonging to that community, notwithstanding that the person’s natural
parents were not married to each other, or were married exclusively under the Marriage Act
[Chapter 5:11];
(iii) where the person does not live among members of such a community, whether he or she has ties
to such a community by reason of his or her natural parents belonging to such a community.
(5) For the avoidance of doubt it is declared that
(a) the competent charge against
(i) a male person who has sexual intercourse with a female person without her consent who is
related to him in any degree of relationship specified in subsection (2), shall be rape and not
sexual intercourse within a prohibited degree of relationship;
(ii) a female person who has sexual intercourse with a male person without his consent who is
related to her in any degree of relationship specified in subsection (2), shall be aggravated
indecent assault and not sexual intercourse within a prohibited degree of relationship;
(b) paragraph (i) of subsection (2) shall not apply to persons who
(i) on the fixed date are married to each other under the Marriage Act [Chapter 5:11] or the
Customary Marriages Act [Chapter 5:07] or are parties to an unregistered customary law
marriage; or
(ii) on or after the fixed date are married to each other under any foreign law.

BIGAMY AS PER THE CRIMINAL LAW CODE

103 Interpretation in Part VII of Chapter V
In this Part
“actually polygamous marriage” means a polygamous marriage consisting of a husband and two or more
wives;
“monogamous marriage” means
(a) a marriage celebrated in terms of the Marriage Act [Chapter 5:11] or any enactment repealed by
that Act; or
(b) any other marriage celebrated inside or outside Zimbabwe under a law which prohibits the
parties from marrying anyone else whilst they remain married to each other;
“polygamous marriage” means
(a) a marriage celebrated according to customary law and solemnised in terms of the Customary
Marriages Act [Chapter 5:07]; or
(b) an unregistered customary law marriage; or
(c) any other marriage celebrated inside or outside Zimbabwe under a law which permits the
husband to marry another woman while remaining married to the wife;
“potentially polygamous marriage” means a polygamous marriage consisting of a husband and a single wife.
104 Bigamy
(1) Any person who, being a party to
(a) a monogamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into
another marriage, whether monogamous or polygamous, with a person other than his or her spouse by
the first-mentioned marriage; or
(b) an actually polygamous marriage and, knowing that the marriage still subsists, intentionally purports to
enter into a monogamous marriage with any person; or
(c) a potentially polygamous marriage and, knowing that the marriage still subsists, intentionally purports to
enter into a monogamous marriage with any person other than his or her spouse by the potentially
polygamous marriage;
shall be guilty of bigamy and liable, if convicted in terms of
(i) paragraph (a), to a fine not exceeding level six or imprisonment for a period not exceeding one
year or both;
(ii) paragraph (b) or (c), to a fine not exceeding level five.
(2) Where a person is accused of bigamy in circumstances where he or she is alleged to have purportedly
entered into a monogamous marriage while being a party to an unregistered customary law marriage with another
person, and the accused denies that he or she is a party to the unregistered customary law marriage, the burden
shall rest upon the prosecution to prove beyond a reasonable doubt that he or she is a party to the unregistered
customary law marriage.

54
VOIDABLE MARRIAGES

Marriage valid for all purposes unless and until a decree of annulment is obtained. Until then, children
are legitimate, reciprocal duty of maintenance, husband's domicile, can inherit, sex with third parties is
adultery.

Only aggrieved party can bring an action. If persons abides by marriage, it is ratified. Action can only be
brought during life time unlike for a void one where even after death, action can be brought.

EXAMPLES OF VOIDABLE MARRIAGE

 Intimidation or coercison by fear or duress
 If one party suffers from permanent impotence
 Where woman is pregnant at the time of marriage by someone else through illicit intercourse
and husband is unaware of this
 Non consummation due to refusal wilful one by one party
 Where either party is at the time of marriage mentally disordered within the meaning of the
Mental Health Act.

EFFECT OF AN ORDER OF NULLITY ON VOIDABLE MARRIAGE

Retrospective to the time of the marriage ceremony. Parties as if never married at all . BUT SUBJECT
TO SEC 2 BDRA IN RESPECT TO CHILDREN

Under common law children become illegitimate but by section 14 of the Matrimonial Causes Act status
of children not affected . They are still legitimate.

Other important sections

 Section 19 SEE KARIMATSENGA VS TSVANGIRAI AND OTHERS HH-369-12

 Section 29 – Blessing of marriage
 Sections 30-34

CASES

Chamboko vs Chamboko and another 1998 ( 2) ZLR 516

MAKOVA vs MAKOVA 1998 ( 2 ) ZLR 82

Appellant married a woman in a church wedding. Subsequently he had purported to enter into a
customary law marriage with the respondent in terms of the then African Marriages Act. In the marriage
certificate for this marriage , the Respondent was described as the appellant's first wife . The trial court
decided that the marriage between the appellant and respondent was null and void on the grounds that
it was bigamous. The trial court ordered a division of the matrimonial property acquired during the
marriage before it was annulled. On appeal :

Held: That when the respondent married appellant, she was unaware that the appellant was already
married to another woman . On the other hand , the appellant was fully aware that he had already
married another woman in church and that the subsequent registered marriage would therefore be
bigamous. The 2nd marriage was null and void on the grounds that it was bigamous.

Held: Further that as regards the division of the Matrimonial assets of the annulled marriage, the African
Customary law knows no concept of a putative marriage and to introduce the common law concept of
putative marriage into customary law is to distort customary law. However when the court has declared
55
a marriage null and void, the court is empowered by section 7 ( 1 ) of the Matrimonial Causes Act to
order division of the spouses property and it is not necessary to find that the marriage is putative in
order to do this. This provision applied in the present case . If this were not the case, it would work an
injustice and hardship on a party such that the respondent who had laboured during the marriage and
had contributed by the accumulation of the matrimonial property under the impression that the marriage
was valid.

It would unjustly enrich a dishonest party such as the appellant simply because the property in question
is either registered in his name or under his control . Such a position would be unconscionable and the
legislature by using the expression NULLITY OF MARRIAGE, in section 7 ( 1 ) of the Matrimonial
causes Act must have envisioned that a situation such as the present would be covered . Such actions
are very common in African society because of the failure by many to realise that once they contract a
CHURCH marriage, their marriage becomes monogamous.

KATIYO vs STANDARD CHARTERED ZIMBABWE PENSION FUND 1994 ( 1 ) ZLR 225

Deceased was married to the plaintiff in an UCLU. The deceased had been a member of a pension
scheme operated by his employer . When he died , the plaintiff was advised by the defendant that she
should not be paid spouse's annuity from the pension fund unless she produced a marriage certificate .
She was unable to do so. The trustees of the fund decided that she was not a spouse as envisaged in
the rules of the pension fund and that she was not therefore not entitled to a spouse's annuity. The
plaintiff applied to court for an order directing the defendant to register her as a spouse and pay her a
spouse's annuity .

Held: The refusal by the Trustees of the fund not to treat the plaintiff as a spouse for the purposes of
the pension fund did not violate section 23 of the constitution . Section 3 of the African Marriages Act
lays down that the UCLU is invalid except for purposes of status , guardianship and rights of succession
of children. The statutory provisions do not offend section 23 of the constitution. Section 23 ( 3 ) allows
for differential treatment of persons by law in matters of marriage and other matters of personal law .
The ruling by the Trustees not to accept the UCLU as a valid marriage under the pension scheme was
largely influenced by section 3 of the then African Marriages Act and did not therefore violate section 23
of the constitution.

Further: In the absence of unreasonable conduct or mala fide on the part of the Trustees of the pension
fund, the court is not entitled to interfere with the discretionary decision reached by the defendant that
the plaintiff was not a spouse for the purposes of the pension fund. The Trustees decision had not been
taken on an unreasonable basis.

Further: The trustees of the pension fund had correctly concluded that the plaintiff was not a spouse as
envisaged in the rules of the fund. In terms of section 3 of the African Marriages Act an UCLU is not a
valid marriage except for certain purposes . These exceptions relate only to the children of such union.
There is no provision in the Act or any other statute laying down that such a union is to be recognised
as valid for the purposes of payment of pension funds and that customary law wife must be treated as a
spouse for purposes of payment of annuity under the scheme. Although the present position is unfair,
the position can only be changed by the legislature and could not usurp the law making function of the
legislature.

MANDIMIKA vs MANDIMIKA AND ANOTHER 1997 ( 2 ) ZLR 352

Plaintiff and defendant had been married in Zimbabwe in terms of the Marriage Act. The plaintiff
brought an action for divorce from the defendant. The parties had drawn up a consent paper setting out
the terms on which the relationship was to terminate. It was clear that the marriage had irretrievably

56
broken down. However , before marrying defendant , the plaintiff had previously married another
woman in Ghana.

Held: The marriage contracted in Ghana was a civil union similar to a Zimbabwean marriage under the
marriage act. A foreign marriage is recognised in Zim if it is a valid marriage in the country in which it
was contracted provided that it is not contrary to public policy of Zimbabwe. This applies to both civil
and registered customary marriages. As the Ghanaian marriage was valid in Ghana, it must be
recognised as a valid marriage in Zimbabwe.

Held : That the purported Zim marriage under the marriage act amounted to bigamy whether the pre
existing marriage was a civil marriage or a customary union and therefore the purported Zimbabwean
marriage was null and void.

Further that the court could not make an order embodying the terms of the consent paper . The parties
ha entered into a consent paper on the assumption that their marriage was valid . As the marriage as
null and void, there was no antecedent right on the basis of which parties could request the court to
make an order embodying the terms of the consent paper. Additionally, the relief asked for had no
foundation in the pleadings nor did it flow naturally from the cause of action.

Further : If the parties had not concluded the consent paper and this matter had pleaded , the court
might have been able to give an order as to the distribution of the property either on the basis of the
putative marriage if the court was of the opinion that the defendant was an innocent party or on the
basis that the parties were joint owners of the property which should be divide between them.

MAKWIRAMITI vs FIDELITY LIFE ASSUARANCE OF ZIMBABWE ( PVT ) LTD AND ANOTHER

1998 ( 2 ) ZLR 471 ( SC)

The appellant and her late husband were married in 1970 under the Marriage Act. The marriage was
never dissolved .In 1989, he married another woman the 2nd respondent under the customary
marriages Act . On the deceased's death, the respondent insurer started paying a pension solely to the
appellant. It then discovered the existence of a 2nd marriage and started paying the 2nd wife reducing
the payments to the appellant. It considered that the 2nd wife was a ''surviving spouse '' in terms of the
Pension and Provident funds regulations 1991 which defined the term as meaning the widow of a
deceased member of a pension fund including the widow of a polygamous person. The appellant
brought the matter before the High Court which held that although the 2nd marriage was null and void,
the 2nd wife remained a wife under an UCLU and thus entitled to share in the benefits from the
deceased's pension policy.

Held: that the 2nd marriage did not exist in law. By marrying under the marriage act, the deceased
waived his customary privileges of polygamy. He ceased to be a polygamous person. He could not be
married monogamously and polygamous at the same time. The 2nd respondent was not entitled to any
benefits as a widow.

JESSE vs CHIEF IMMIGRATION OFFICER AND OTHERS 1996 ( 2 ) ZLR 720

Applicant, a citizen of the UK came to Zim in 1994 as the result of an introduction to Mr Jesse a citizen
of Zim. She stayed here for some two weeks , went back to England , sold her effects and returned to
Zim in November 1994. She obtained a 3 months visitors visa on arrival and extended it while in Zim.
During the time she was in Zim, applicant lived with Mr Jesse. The extended visa expired on 8 June
1995 and the next day she was declared a prohibited person and deported. Two weeks later, Mr Jesse
applied unsuccessfully for a temporary permit for the applicant to enter Zim so that he could marry her.
The application was refused but applicant entered Zim clandestinely . She and Mr Jesse applied for a
marriage licence . She left Zim again and returned in early July using a new British passport which gave

57
her surname as Jesse. She and Mr Jesse were married in Byo. She subsequently went back to the UK
where she gave birth to a child.

In her application , the applicant sought an order ( 1 ) setting aside the order declaring her to be a
prohibited person ( 2 ) declaring that her marriage was genuine ( 3 ) that she be granted citizenship of
ZW. The respondent argued that the marriage was one of convenience.

Held: The courts will not lightly assume that a marriage is one of convenience especially were there is a
child of the marriage and a consequence of declaring the marriage invalid would be to make the child
illegitimate.

Further : that the two ingredients of a marriage of convenience which is a popular but not legal term are
that the marriage was entered into primarily for the purpose of evading the immigration laws and that
there was no intention of living together as man and wife. The 2nd ingredient is not as important as the
1st and both must be proved.

Held: Further that a marriage entered into purely for the purposes of enabling a non citizen to continue
to reside in the country is nevertheless a valid marriage. Even if the respondents had established that
the applicant and Mr Jesse had entered into a marriage of convenience , the marriage was still valid
and the consequences of the marriage would follow .The evidence though established that they
intended to live together as man and wife .

Held: Declaration that her marriage was valid would automatically mean that the applicant would be
entitled to enter and reside in Zim and that she could not be prohibited person. The court could not
however order that she be granted citizenship.

RATTIGAN AND OTHERS vs CHIEF IMMIGRATION OFFICER AND OTHERS 1994 ZLR 54 ( SC )

The 3 applicant women were all Zim citizens . The department of immigration had refused to allow their
husbands who were all aliens permanently resident in Zimbabwe. The wives brought an application
direct to the Supreme Court for an order declaring that their rights as citizens under Sections 11 and 22
of the constitution had been breached.

Held: That Section 11 of the constitution embodied substantive rights and is not a mere preamble.

Further: That the rights of the applicant wives under section 22 of the constitution had been breached
as they had a right to have their husbands reside with them in Zim.

Freedom of movement: Marriage is a juristic act sui generis - it gives rise to a physical , moral and
spiritual community of life- consortium omnis vitae . It obliges the husband and wife to live together for
life and to confer sexual privileges exclusively upon each other.

 Choto vs Matiye 1974 ( 1) RLR 302

 Karambakuwa vs Mabaya SC 158/87: Despite no lobola being paid, court recognised a co-
habitation arrangement as marriage for purposes of maintenance under customary law
 Lange vs Lange 1945 AD 332
 Vlook v Vlook 1953 ( 1) SA 485
 Morrison vs Morrison 1972 ( 3) SA 185
 Locke vs Locke 1951(1) SA 132
 Smith vs Smith 1948 ( 4) SA 61
 Parojcic vs Parojcic 1959 ( 1) AER 1
 Buckland vs Buckland 1967 ( 2) AER 905
58
  Szechter vs Szechter 1970 ( 3) AER 905
 Kanatoposky vs Kanatoposky 1935 EDL 308
 Mehta vs Mehta 1945 ( 2) AER 691
 Kassim vs kassim 1962 ( 30 AER 426
 Stander vs Stabder 1929 AD 349
 Smith vs Smith 1961 (3) SA 359
 Venter vs Venter 1949 ( 4) SA 123
 Van Niekerk vs Van Niekerk 1959 ( 4) SA 59
 C vs C 1954 ( 2) SA 274
 Rattigan and others vs Chief Immigration Officer and others 1994 ZLR 54

PERSONAL CONSEQUENCES OF MARRIAGE

Once persons are validly married, certain consequences with respect to spouses status, personal
duties and rights and proprietary rights arise.

CONSORTIUM ONMIS VITAE

 Companionship
 love
 affection
 comfort
 mutual services and exclusive sexual intercourse
 But courts will scrutinise marriages to determine whether or not they are not for
convenience – Jonasi – Ogundipe; Makulumo and Mudyanduna cases

DUTIES
 Fidelity
 cohabitation
 loyalty

REMEDY FOR BREACH

 Judicial separation
 divorce
 No claim for adultery against each other or damages for desertion
 No action for restraint from committing adultery or desertion
 Action against third party from enticing , procuring or persuading wife/ husband to leave spouse

 Adultery - adulteress / adulterer must know that the other party is legally married. If innocent
spouse forgives the guilty spouse , no bar to action for adultery but may affect damages to be
awarded.

 See : EX PARTE AB 1910 TPD 1332 VOLUME 3

ADULTERY

Adultery is sexual intercourse between two people where one of the parties or both are married to
someone else at the time of the intercourse.

Meant to compensate the injured party for contumelia and for loss of consortium . An innocent spouse
has love, affection and all the comforts of marriage withdrawn from her/ him by the wayward partner.

59
CASES

 Amra vs Amra and another 1971 ( 4) SA 409

 Van Der Berg vs Jooste 1960 (3) SA 71
 Grobbelaar vs Havenga 1964 ( 3) SA 522
 Smit vs Arthur 1976 ( 3) SA 378
 Reith vs Antao 1991 ( 2) ZLR 317: Adulterer or adulteress must know that the other party
is legally married. If innocent spouse forgives , no bar to action for adultery but may
affect damages to be awarded.
 Viviers vs Kilian 1927 AD 449
 Takadini vs Maimba 1996 ( 2) ZLR 737

DAMAGES FOR ADULTERY

 State of marriage at the time of the adultery
 Imprudence or insult will aggravate damages
 If there is condonation and marital relationship has resumed, can only claim damages for
contumelia but not loss of consortium.
 If marriage broken down before the adultery , damages for contumelia but not loss of consortium
.
 Society’s attitude towards adultery seems to have changed- Adultery no longer being viewed as
harshly as before.

CASES

1. Rateiwa vs Venge : HH -152-11: Assessment of damages, contumelia and loss of

consortium
2. Muhwati vs Nyama HH -137-11
3. Chiwandamira vs Mupandawana HH -06- 11
4. Katsumbe vs Buyanga 1991 ( 2) ZLR 256
5. Sidubi vs Middlemiss HB -130- 87
6. Chapman vs Chapman and another 1977 ( 4) SA 142
7. Muyambo vs Bere HH -30- 2007: Defendant claimed to have married plaintiff’s husband
under an UCLU but this was dismissed by the court.
8. Jhamba vs Mugwisi HB- 1-10
9. Nyandoro vs Tirizai HH- 12-06
10. DE vs RH – South African case – CCT 182/14 – ABOLISHED ADULTERY DAMAGES
11. Njodzi vs Matione HH-37-16; HC reaffirmed that adultery damages are still part of the
Zimbabwean law

ADULTERY UNDER A CUSTOMARY LAW UNION

CARMICHAEL vs MOYO 1994 ( 2 ) ZLR 176

A husband in an UCLU recognised by customary law has a legal right to sue in a court administering
customary law for adultery committed with his spouse . Although section 3 ( 1 ) of the African Marriages
Act cap 238 provides that no marriage contracted according to customary law is valid unless it is
solemnise in terms of that act, the effect of legislation introduced in 1970 was to restore the husband's
right to sue in customary law for adultery damages even though the marriage is not solemnised in terms
of the act.

This legislation was the African law and Tribal courts Act 24/ 69 which became cap 237. The decision
by the court in Maso vs Nyamusu Zhaikwakinyu 1971 AAC 1 that a husband cannot sue for adultery
because his marriage was unsolemnised is invalid and overlooked the change introduced in 1970 and
60
is therefore an incorrect decision. The change in 1970 was also overlooked by Goldin and Gelfand in
their book African law and custom in Zimbabwe in their assertion at 216 that a husband cannot sue for
adultery damages if the marriage is unsolemnised.

The African and Tribal Courts Act was replaced by the customary law and primary courts Act 6/81.
Subsequently the customary law and primary courts Act was replaced by the customary law and local
courts Act 2/90. Correctly interpreted both the customary law and primary courts Act and the Customary
Law and local Courts Act maintained the right of the husband in an unsolemnised customary law union
to sue in customary law for adultery damages. One important consideration in reaching the conclusion
is that if a husband in an unsolemnised or UCLU is primarily responsible for the maintenance of his
wife, customary law courts must recognise the correlative right of the husband to claim damages for
adultery.

ADULTERY UNDER CUSTOMARY LAW MARRIAGE

MUKONO vs GWENZI 1991 ( 1 ) ZLR 119

A woman who was over the age of 18 married a man in terms of the customary marriages act. The wife
had successfully claimed damages against a woman who had committed adultery with her husband. On
appeal :

Held: A customary marriage under the customary marriages Act is potentially polygamous whereas a
marriage under the Marriage Act is monogamous. The two types of marriage are different and confer
different rights and obligations upon parties to the marriage. The parties can only enjoy the rights and
obligations upon the parties to the marriage . The parties can only enjoy under the type of marriage
they have chosen . When a woman opts to enter into a customary law marriage, she must be taken to
have been fully aware of the rights available to her under that type of marriage.

Held: Under customary law a married woman is not entitled to claim damages against a woman who
committed adultery with her husband. Under customary law , a married woman seldom has a right of
action in her own name. The husband of a married woman is her guardian and he would normally bring
the action but obviously not in a case where he committed adultery with another woman. Only the
adulterous woman's husband or father can sue the erring husband.

Further: Although LAMA had given women over the age of 18 years the legal capacity to sue in their
own names, it did not give them causes of action which did not exist previously. If the legislature had
intended to do away completely with the differences under customary law marriages and general law
marriages and to eliminate all disabilities and discrimination arising from customary law, it would have
provided for this in LAMA . Therefore despite LAMA, a woman over 18 who is married in a customary
law marriage cannot sue for damages the woman who has committed adultery with her husband.

Case also highlights the issue of certificates of blessings given by especially the Catholic church which
are not marriage certificates which many people believe to be.

THE MARRIED STATUS : BUT CONSTITUTION STATES THAT THERE IS EQUALITY OF RIGHTS
AND OBLIGATIONS OF SPOUSES DURING MARRIAGE AND AT ITS DISSOLUTION
 Wife assumes husband's rank and dignities
 Wife assumes husband's domicile and cannot change domicile even when parties are living
apart
 Wife may assume husband's surname but is not obliged to do so- a hot issue in Zim where RGs
office is forcing women to assume surname of husband. SEE CONSENT ORDER IN FADEKE
OBATULU VS REGISTRAR – GENERAL AND OTHERS HC 7873/10

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 No marriage to someone else whilst marriage is still subsisting - subject to Customary marriage
Act
 Affinal relationships with each others relatives

RECIPROCAL DUTY OF MAINTENANCE

While marriage is still in subsistence , parties have a reciprocal duty to maintain each other -
accommodation, clothing , food , medical expenses e.t.c. This applies under both customary and RD
common law. SEE : SALEM VS CHIEF IMMIGRATION OFFICER AND ANOTHER

CHAWANDA vs ZIMNAT 1989 ( 2 ) ZLR 352 , SC - 1990 ( 2 ) ZLR 143

A woman in an UCLU is entitled to compensation for loss of support arising from the unlawful killing of a
spouse.

Under customary law duty reinforced by section 6 ( 3 ) ( a ) of the Maintenance Act .

Question of who must support who is a question of fact and depends on personal circumstances of the
parties.

If both have equal means, must make a pro rata contribution . Scale must take into account social
status and financial means of the parties and also standard of living.

SEE ALSO DAPI AND ANOTHER VS MUTASE AND ANOTHER HH-108-02

 Doyle vs Doyle 1957 (2) SA 577
 Oberholzer vs Oberholzer 1947 ( 3) SA 294
 Alarakhaz vs Alarakhaz 1975 RLR 274
 Berh vs Minister of Health 1961 ( 1) SA 629
 Cook vs Cook 1911 CPD 810
 Carstens vs Carstens 1895 ( 2) SA 351

Cause of who is to blame is relevant in post separation maintenance

The statutory position is provided for in section 10 of the maintenance act regarding adultery .

Court exercises a discretion .

Section 7 of the Matrimonial causes act - court must pay regard to the conduct of the parties before
making an order for maintenance. Conduct only relevant if court wants to place the parties in the
position they would have occupied had the relationship not broken down - statutory target

England - conduct would not be considered unless it was obvious and gross

MAINTENANCE OF SPOUSES PENDETE LITE

A needy spouse can claim maintenance pendete lite from the courts.

What spouse has to prove is as follows:

 If she is the plaintiff , that she has fair and reasonable prospects of success and if she is a
defendant, that she has a bona fide defence to plaintiff’s claim for divorce.
 He/she does not have sufficient means for to support him/herself
 that the defendant has means to support him/her
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Scale: Maintained at the same standard comparable to standard they were living as husband and wife.

Courts guided by section 7 ( 4 ) Matrimonial Causes act .

ARREAR MAINTENANCE FOR SPOUSES

 Not recoverable in the absence of an agreement or order of court- non enim quisqam in
praeteritum vivit aut alendus est - a person does not live to be maintained in arrear
 If spouse has had to incur debts or borrow in order to live , may recover an appropriate
contribution from defaulting spouse.
 Muzondo case - Mcnally expressed reservations on the above maxim

MAINTENANCE OF EX SPOUSES

SEE DICKS VS DICKS HH-61-11 Post divorce maintenance only for 4 months
DUBE VS DUBE HH 176-11
TANGIRAI VS TANGIRAI- DENIED POST DIVORCE MAINTENANCE
CHIOMBA VS CHIOMBA – Marriage IS NOT A BREAD TICKET FOR LIFE
MHLANGA VS MHLANGA HH-70-11 ONE HAS TO JUSTIFY POST DIVORCE MAINTENANCE
 Reciprocal duty of maintenance ends at divorce under both customary and common law - this is
under common law - existing order ends
 Section 7 ( 1 ) (b) .......at any time thereafter ...Matrimonial causes Act- action for
maintenance can be brought at divorce or anytime thereafter. Again court must resort to factors
set out in section 7 ( 4 ) of the Matrimonial Causes Act. So spouse is entitled to maintenance
even after divorce.
 Section 10 Maintenance Act- issue of adultery- court may not give maintenance or discharge it

MAINTENANCE IN A CUSTOMARY LAW UNION

Now dealt with by section 6( 3) of the Maintenance Act- Husbands and wives being primarily
responsible for each other's maintenance.

The Customary law and local courts act specifically provided that the husband at customary law would
be responsible for the maintenance of the wife during the marriage, after the marriage was dissolved
until the wife's remarriage.

In the Maintenance Act it is not so clear and the question would remain whether the wife/ husband at
customary law will be liable for maintenance after dissolution of the customary law union.

Section 11 ( 3 ) ( a ) of the Maintenance Act provides for the cessation of the maintenance when the
wife dies or remarries so it would seem that a husband can still be made to pay maintenance after
dissolution of the UCLU until wife dies or remarries.

Strangely section talks about wife only - Does that mean if there is an order in favour of the husband it
does not cease if husband remarries ? That is a moot question.

VARIATION AND DISCHARGE OF MAINTENANCE ORDERS IN FAVOUR OF EX SPOUSES

 Section 8 ( 5 ) of the Maintenance Act : application should not be frivolous and vexatious
 Section 9 of the Matrimonial Causes Act: On good cause shown
 Difference between discharge and variation

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SALEM vs CHIEF IMMIGRATION OFFICER AND ANOTHER 1994 ( 2 ) SA ZLR 287

The applicant was a citizen of Zim by birth and a permanent resident of Zim. She had met her husband
a British citizen in SA and married him in Zim. He applied to the 1st respondent for the issue of a
residence permit and was told by the 2nd respondent that he would have to leave the country and wait
outside the country for the outcome of his application.

The applicant brought an application before the Supreme Court under section 24 of the constitution.
The application sought to extend the ruling given by the Supreme Court in Rattigan and others vs
Chief Immigration officer and others 1994 ( 2 ) ZLR 56 to embrace within her right to reside
permanently with her husband , the right pf her hubby to engage lawfully in employment or other gainful
activity within Zim . She depose that she was pregnant and with the arrival of the child, would need her
husband to support her and the child. It was argued on her behalf that if a citizen's alien husband were
not allowed to engage in gainful employment , it could frequently lead to a situation where the citizen
would be forced to leave the country in order to accompany her husband to a country where he was not
prohibited from earning a livelihood.

Held: the requirement imposed by the 2nd respondent that the applicant's husband should leave the
country to await the outcome of his application was in knowing defiance of the applicant's constitutional
right to have her husband living with her in Zimbabwe. The 2nd respondent's disdainful disregard of the
court's previous ruling was deserving a censure.

A generous and purposive interpretation should be given to the protection expressed in Section 22 ( 1) .
While the word ''reside " is ambiguous and has a variety of meanings, to ascribe to it the meaning of the
place where an individual sleeps and eats would diminish the guaranteed wife of a citizen who for
whatever cause is unable to provide sufficiently for her alien husband and children . It would
differentiate between the affluent wife who is not dependant on her husband for support and the wife
who is partially or wholly dependant on him. The latter would have no option but to leave the country in
order to live in a country where her husband would assume the role of a breadwinner.

As between hubby and wife, there is a mutual duty of support stante matrimonio. In practice , the
primary duty of maintaining the household rests on the husband. He must do so on a scale
consummerate with the social position , financial means and standard of living of the parties. He cannot
evade that responsibility by showing that his wife is receiving assistance from relations, friends or
charitable institutions. Consequently unless the protection guaranteed under section 22 ( 1 ) of the
constitution embraces the entitlement of a citizen wife residing permanently in Zim to look to him for
partial or total support, the exercise of her unqualified right to remain here as a member of a family unit
is put in jeopardy.The attitude of the respondents was such as to enjoin the court as to ensure that
applicants right would be given effect to issue directives to the 1st respondent rather than adopt the
preferred expedient of merely declaring the existence of applicant's rights.Order issued accordingly.

NOTE THAT IN ZIMBABWE , THE WIFE CAN APPLY FOR MAINTENANCE FROM THE DECEASED
ESTATE THROUGH THE D.P.F.M.A
CASES
 Chiomba vs Chiomba 1992 ( 2) ZLR 197
 Africa vs Africa 1985 ( 1) SA 792
 Kirk vs Kirk 1970 ( 1) SA 128
 Joseph vs Joseph 1958 ( 4) SA 268
 Owen –Smith vs Owen Smith 1981 ZLR 514
 Hughes N.O vs The Master and another 1960 ( 4) SA 936
 Waston vs Waston 1959 ( 1) SA 185
 Benekevs Beneke 1965 ( 1) SA 855
 Dawe vs Dawe 1980 ( 1) SA 142
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  Dreyer vs Dreyer 1984 ( 2) SA 483
 Salem vs Chief Immigration Officer and another 1994 ( 2) ZLR 287
 Chizengeni vs Chizengeni 1988 ( 1) ZLR 286
 Qoza vs Qoza 1989 ( 4) SA 838
 Du Toit vs Du Toit 1991 ( 3) SA 58
 Hodges vs Coubrough NO 1991 ( 3) SA 58
 Jerrard vs Jerrard 1992 ( 1) SA 426
 Reid vs Reid 1992 ( 1) SA 443
 Rabie vs Rabie 1992 ( 2) SA 306
 Dhlembeu vs Dhlembeu 1996 ( 1) ZLR 105

CHAPTER 8 : Matrimonial property rights, divorce and ancillary relief

Constitutional provision : Section 26- there is equality of rights and obligations of spouses
during the marriage and at its dissolution. What does this mean for the property rights of
spouses

MATRIMONIAL PROPERTY RIGHTS OF SPOUSES

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 Governed by the law of the country where husband is domiciled at the time of marriage except
in cases where there is an ante nuptial contract.
 Domicile is a state of mind and even if wife is not domiciled in Zim at the time of marriage,
domicile of husband will be considered.
 SEE: LATIF VS LATIF S-49- 04 ; KUNG VS KUNG; GALANTE VS GALANTE AND
CHIKWENENGWERE VS CHIKWENENGWERE

OTHER CASES
 Sperling vs Sperling 1975 ( 3) SA 707
 Frankel s Estate and another vs the Master 1950 ( 1) SA 220
 Brown vs Brown 1921 AD 478

IF HUSBAND IS DOMICILED IN ZIM: Applicable system as a general rule would depend on the type of
marriage i.e. whether customary or general law marriage , African or non African , Whether married
under Zim law or some foreign law . Choice of law - Customary law and local courts Act.

AFRICANS MARRIED TO NON AFRICANS AND NON AFRICANS

 Marriage of a non- African male domiciled in Zim whether in terms of the Zim law or foreign law
are governed by the general law of Zim- Section 2 Married persons property Act. Marriage is
automatically out of community of property unless parties signed an antenuptial contract
creating community of property. NOTE THAT IN SA THE OPPOSITE IS TRUE, I.E
MARRIAGES ARE AUTOMATICALLY IN COMMUNITY OF PROPERTY WITH ACCRUAL.
 Non Africans married in terms of the Marriage Act- General law applies
 African and a non African - Marriage Act - governed generally by the general law but possible to
argue that customary law applies if the two live by the dictates of customary law e.g. they settle
in a village, they have cattle, they till the land, they involve themselves in customary traditions
like kurova guva e.t.c but one would have to invoke the choice of law process.

GENERAL CONSEQUENCES OF MARRIAGE

Section 26 : There is equality of rights and obligations of spouses during marriage and at its
dissolution. What does this mean for marriages in community of property and out of community
of property

Up to 1929, proprietary consequences governed by Roman Dutch law principles which stated that all
marriages were automatically in community of property unless parties at the time of the marriage
entered into an ante nuptial contract providing that the marriage was out of community of property.
Position was reversed in 1929 by the Married Persons property Act of 1929 which provided that all
marriages are automatically out of community of property unless parties enter into an ante nuptial
contract creating community of property.( CONTRAST WITH THE SA POTION WHICH IS THE
OPPOSITE)

MARRIAGE IN COMMUNITY OF PROPERTY AND PROFIT AND LOSS

 Movable and immovable property ,present and future including debts held jointly and spouses
hold equal shares regardless of their contributions.
 Joint estate falls automatically under administration of husband - has power to encumber,
alienate or deal with property as he sees fit.
 Husband can donate, sell or destroy estate and is not liable in damages to his wife for any
maladministration

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 At dissolution by death or divorce, community comes to an end and one half each goes to the
spouse in the event divorce and half goes to the heirs of a deceased spouse. BUT NOW
COURTS CAN DO SO IN TERMS OF THE MATRIMONIAL CAUSES ACT THAT PROVIDES
AN EQUITABLE RE-ALLOCATION OF COMMUNITY ASSETS AT THE TIME OF DIVORCE.
AT
 Marital power highly prejudicial to women

See : Chiromo vs Katsidzira 1981 ZLR 418

MARRIAGE OUT OF COMMUNITY OF PROPERTY

 Arises automatically when the spouses are non Africans and there is no ante nuptial contract
 Seems that now because of the repealing of section 13 of the Customary marriages Act, this
now applies also to Africans married under general law as far as movable property is concerned.
 Each spouse retains his /her property that they brought into the marriage and the property they
each acquired during the marriage.
 Wife is not under the control of her husband. She can enter into contracts, sell her own
property , enter into partnerships and go to court without her husband's help.
 At dissolution of marriage by death or divorce, each spouse retains his or her own property and
court has no power to interfere and alter or adjust the property rights of spouse using the
fairness or equity and justice principle
 A imprudent spouse is prevented from ruining his/her spouse because there is no community of
debts. In reality however most spouses merge their property and allocate each other
responsibilities in running the household. One spouse may be allocated the responsibility of
buying durable good for example so that it becomes a legal fiction at the end of the day for each
to walk away with what they brought into the marriage.
 Some wives stay at home and take care of the family. This role is then considered unimportant
in the out of community realm because their domestic contribution is not taken into account.
There is therefore no equity there.

CUSTOMARY LAW PROPRIETARY CONSEQUENCES OF MARRIAGE

 Women treated as perpetual minors - no contractual or proprietary capacity
 Dominance of men - marital power
 Property acquired automatically vested in the husband unless it fell into specific categories : See
Jenah vs Nyemba case
 The excluded property is mombe youmai/ innkomo yohlanga and mavoko/impahla zezandla -
this is property acquired by the woman through her skills e. g pottery, knitting ,midwife or
herbalist
 African woman can also own both movable and immovable property. Colonialists took view that
the ownership of immovable property was unknown under customary law so general law
applied- See Matambo vs Matambo , Jirira vs Jirira
 Under customary law all meaningful property owned and controlled by husband. Woman
perceived as an object who has to work or the husband and at the end of the day just leave with
her mavoko property or mombe yeumai
 Urban woman rarely has mombe yeumai or mavoko and she walks away empty handed-
Customary law does not recognise her domestic contribution

DISPOSING OF PROPERTY DURING SUBSISTENCE OF MARRIAGE

Semwayo and another vs Chatara and another HB -48-07: Wife cannot stop husband from
disposing of immovable property registered in his own name unless she proves connivance.
See also Muswere vs Makanza HH-16-05

Magurenje vs Maposa ; Wife sold house to a 3 rd party whilst on separation. Husband could have
sale set aside by showing that wife had sold property to defeat his rights.
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Nkala vs Nkala and anor ( HB) father ceded house to son before court dealt with the property and
held to be mala fide

Section 26(c)- Equality of rights and obligations of spouses during marriage and at its
dissolution

DIVORCE

When two people get married , two things are certain and i.e. the dissolution of their marriage. This can
be either through death or divorce. Death has to be proved and if circumstances arise an order
presuming death has to be obtained from the Magistrates court in terms of the Missing persons Act.

Until the passing of the Matrimonial Causes Act of 1985, which came into force on the 17the of
February 1986, the Zim divorce law was based squarely on the guilt principle except for insanity .

There were five recognised grounds for divorce:

 Adultery
 Malicious desertion
 Cruelty
 Insanity
 Long term imprisonment

Guilty spouse suffered certain disadvantages . He or she could be ordered to forfeit the benefits of the
marriage such as his or her share of the community of property and entitlement to post divorce
maintenance.

ADULTERY

We have already dealt with adultery which is the act of intercourse between a married person with
another person who is not their spouse.

Sexual intercourse must be proved though more often than note, its by inference
 Innocent spouse could forgive guilty spouse and if so could not at a latter stage institute an
action for divorce based on the forgiven adultery. Condonation could not take place if the guilty
spouse refused to be forgiven. Also where sexual intercourse took place after the adultery this
was taken as condonation.
 Connivance - anticipatory consent, express or implied to future misconduct - volenti non fit
injuria - promoting, encouraging or acquiescing in initiation or continuance of adultery by one
spouse.

 Court will also not grant a divorce if parties connive to lay false facts before the court by either
lying that adultery took place or suppressing facts on adultery.

See : Van Deventer vs Van Deventer and another 1962(3) SA 269

 Nkomo vs Ndlovu HB-74-88
 R vs C 1952 ( SA) 117
 Pelia vs Pelia 1972(1) SA 399
 Ex Parte F 1962 ( 1)
 Bell vs Bell 1909 TS 500
 Potgieter vs Potgeiter-Voster 1970 ( SA) 28

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MALICIOUS DESERTION

Set out in the old matrimonial causes act

Occurred when one party deserted the other out of malice in order to put an end to the marriage.

Two elements - conduct amounting to desertion - factum of desertion and the mental element - animus
deserendi - acting without good cause with an intention to put end to marriage - so if no intention to put
end to marriage- no desertion.

Physical desertion - actual leaving of matrimonial home

Constructive desertion - innocent spouse made to leave the matrimonial home by the conduct of the
guilty spouse the latter's conduct being in such a way as to put an end to the marriage.
 Denial of conjugal rights is a species of malicious desertion and so is unreasonable refusal to
have children.
See : Wyndam –Quin vs Wyndam-Quin 1978 (4) SA 843

ELEMENTS OF MALICIOUS DESERTION

 Coming of an end of consortium because plaintiff has left the matrimonial home
 Plaintiff must have left as a result of defendant's unlawful conduct
 The defendants conduct must be that of wanting to put an end to the relationship.

See : Hattingh vs Hattingh 1948 ( 4) SA 727

 W vs H 1965 ( 4) SA 740
 Schroder vs Schroder 1959 ( 2) SA 6

DEFENCES TO MALICIOUS DESERTION

 Insanity
 Agreement to live apart
 Adultery by plaintiff
 Resumption of cohabitation

CRUELTY
 Plaintiff was required to show that during the subsistence of the marriage, the defendant had
treated him/her with cruelty as made the continuance of the marriage insupportable
 Habitual drunkenness regarded as cruelty
 Plaintiff could not obtain divorce if he/she was responsible for the conduct of defendant
 Conduct must be such as to cause danger to life, limb or health , bodily or mental harm , or give
rise to a reasonable apprehension of danger - conduct must not be more worse than the
ordinary fair wear and tear of a marriage
 No requirement in our law that to amount to cruelty, the conduct complained of must be
intended by its perpetrator to be cruel towards the plaintiff
 Insanity is not necessarily a defence to an action for divorce on the grounds of cruelty

See : Crump vs Crump 1965 ( 2) ALL ER 980

 De Salis vs De Salis 1957 ( 4) SA 639
 Hill vs Hill 1969 ( 3) SA 544
 Gollins vs Gollins 1963(3) ALL ER 966
 Williams vs Williams 1963 ( 2) ALL ER 994
 P vs B 1969 (2) SA 585
 Kat vs Kat 1910 TS 436

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INCURABLE INSANITY

Four facts had to be established:

 That defendant was of unsound mind i.e. mentally defective or disordered
 She or he has been subject to the provisions of the Mental health Act for a period of not less
than five years
 Incurable
 Plaintiff not to blame for the condition

Incurable insanity : Ridley vs Ridley 1961 ( 1 ) SA 59 SR Young J

Where a husband claims a divorce in terms of Section 4 ( a ) of the Matrimonial causes Act 20/1943 as
amended , he must prove that the defendant wife is mentally disordered and incurable i.e. the wife
cannot hope to be restored to a state in which she will be capable of leading a normal social life and of
managing herself and her affairs . Divorce granted.
 Divorce not base on the guilt principle but seen as some misfortune suffered by the defendant.

IMPRISONMENT

Divorce granted if defendant convicted of a crime and either been :

 Sentenced to imprisonment for 15 years of more
 declared to be a habitual criminal in terms of the CPE Act and after such sentence or declaration
had been detained in prison for a continuous period of 5 years or for interrupted periods which
together amount to 5 years within the 10 years immediately preceding the commencement of
the divorce action.
 Court could refuse to grant a decree of divorce if plaintiff had assisted Defendant voluntarily in
the commission of the offence.

ANALYSIS OF THE OLD DIVORCE LAW

 Based squarely on the guilt principle and sought to punish the guilty party
 More often than note, the marriage would have broken down inevitably due to conduct of both
parties but the innocent spouse could keep the guilty spouse bound to a marriage which had
broken down.

OLD CUSTOMARY LAW OF DIVORCE

CHEWA vs BVUTA 1928 SR 98

A native man and woman of the Mashona tribe were married and the marriage duly registered. There
after it became apparent that the husband was impotent and the wife in accordance with native custom
had intercourse with the husband 's brother and gave birth to a child by him. On the question as to
whether the wife was entitled to divorce by reason of the husband's sterility.

Held: It will be contrary to natural justice and morality to refuse her relief.

SHORIWA vs RISI AND MUBAYIWA 1943-44 NAC 27

Maltreatment by and impotence of a husband each constitutes a valid and separate ground for divorce
at native law. Defendant admitted assaulting his wife more than once.

JOKONYA vs DAINA AND MACHINGURA 1943-44 NAC 44

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Husband had paid 10 pounds and one beast lobolo for wife and had lived with wife for many years , the
marriage being childless. Wife sued for divorce on the grounds of husband's desertion and cruelty.
Husband had not supported wife for more than six years.

Held: A deduction of 5 pounds and one beast from the lobolo returnable was reasonable in view of
husband's failure to contribute to the support of wife.

Seamble: A wife in a native customary marriage is entitled to a divorce on the ground of her husband's
prolonged desertion or cruelty.

KAMENYA vs JESSIE AND MBIDA 1943 -4 NAC 4

Although on the dissolution of a customary marriage the woman's guardian may retain a proportion of
the lobolo on account of children born to and services rendered by the woman , such proportion may be
reduced by reason of the woman's adultery.

THE NEW DIVORCE LAW

The Matrimonial causes Act became operational on the1 7th of February 1986

Law applies equally to both customary and general law marriages but does not apply to UCLU.

JURISDICTION
 The Magistrate court can only dissolve a marriage if the parties are married in terms of the
Customary marriages Act. THIS HAS NOTHING TO DO WITH THE MONETARY VALUE OF
THE PROPERTY TO BE SHARED. THE UNDERLYING PRINCIPLE IS THE TYPE OF
MARRIAGE.
 The High Court can dissolve all marriages regardless of type.

Although the High Court has inherent jurisdiction, the act provides for additional jurisdiction in section 3
of the Matrimonial Causes Act – See Kung vs Kung and Chikwenengwere vs Chikwenengwere-
domicile of origin; domicile of dependence and domicile of choice
See also Song vs Yu HH-148-13: Chinese nationals – husband not domiciled in Zimbabwe-
Section 3 applies in instances where the wife is the applicant/plaintiff

BRAIMAH vs BRAIMAH 1996 ( 1 ) ZLR 571 ( Smith J )

The plaintiff, a Zimbabwean woman married the defendant a Nigerian citizen in Harare in 1990. A few
months after the marriage ,the plaintiff obtained a job in Addis Ababa and remained there. At the time of
the action, the defendant was now resident in Botswana . He filed a special plea in bar , claiming that
the Zim court had no jurisdiction.

Where the wife is the plaintiff in a divorce action, the Zim courts have jurisdiction in terms of the
Matrimonial causes Act section 3 ( 1) .

Held: There was no proof that the husband was at the time of desertion or any other time, domiciled in
Zimbabwe. The fact that he got a job and married in Zim did not ipso facto indicate a fixed and
deliberate intention to settle permanently without evidence as to how long he lived and worked here ,
there was not even a prima facie that he had acquired domicile so that he could not be made to come
to court and be cross examined on the matter.

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Further : the wife had been resident in Ethiopia since shortly after the marriage and was still resident
there, in the sense that Ethiopia was where she was to be found daily.

Further : Although it is possible for a person to be '' resident'' in one country but '' ordinarily resident '' in
Zim, she would have to be here on more than a casual and intermittent basis. Ethiopia was where she
regularly and normally or customarily lived.

Held: Therefore that the court did not have jurisdiction and that the plaintiff would have to institute
proceedings in Botswana.

BOSWINKEL vs BOSWINKEL 1995 ( 2 ) ZLR 58 - Chatikobo J

A court has jurisdiction in a divorce action if the person suing for divorce is domiciled within the area of
jurisdiction of the court. The person bringing the action must aver and prove that he/she is domiciled
within the area of jurisdiction of the court. Jurisdiction is not a matter which the litigants are free to
establish by submission. It is the court which must determine the existence or otherwise of jurisdiction.
If it appears to the court from the evidence led that the question of domicile is in doubt, the court would
mero motu raise the question of domicile in order to satisfy itself that the basis of jurisdiction relied upon
has been established.

The plaintiff came from the Netherlands with his wife with the intention of settling in Zim and making it
his home. He had sold his properties in the Netherlands and had used that money to buy properties in
Zim. He had abandoned his domicile of origin. In terms of Section 3 ( 3 ) of the Immigration Act, Cap 4:
02, a person must be lawfully originally resident in Zim for a continuous period of two years before he is
able to acquire a domicile of choice.

The plaintiff had satisfied this requirement. However it is a further prerequisite that the person has the
fixed and settled intention of remaining permanently in the country of choice.

The plaintiff had this intention and thus had acquired a domicile of choice after he had been in Zim for
two years. The fact that he was resident in Zim under a temporary permit might that might not be
renewed or could be withdrawn did not prevent him from acquiring domicile. Even if the plaintiff's permit
is not renewed as a consequence of which he loses his domicile, the court would still have jurisdiction
as summons had been issued at time when he was still domiciled in Zim.

GROUNDS FOR DIVORCE UNDER THE NEW DIVORCE LAW

There are now only two recognised grounds for divorce ( Section 4 ) Matrimonial causes Act .

Also important to note that only the court can grant a decree of divorce but parties sometimes agree
that the marriage has broken down irretrievably .

Does the court have a discretion because of the word '' may '' ? In SA court held that there was no
residual discretion on the court to refuse a divorce once breakdown has been established:

See : Schwartz vs Schwartz 1984 ( 4) SA 462

CONCEPT OF IRRETRIEVABLE BREAKDOWN

SOMETIMES ONE PARTY INSISTS THAT THE MARRIAGE HAS NOT IRRETRIAVABLY BROKEN
DOWN

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Section 5 ( 1 ) of the Act - no reasonable prospect of the restoration of a normal marriage relationship
between the parties
 This is a question of fact and each case must be dealt with in its own merits.
 Inquiry is two pronged ( 1 ) Has the marital relationship between the parties broken down ( 2 ) is
there a reasonable possibility that a normal marriage relationship can be restored between the
parties

 If possibility exists for the restoration of the marriage the court invokes the procedure in section
5 ( 3 ) of the act. If this fails then the marriage would have broken down and should be
dissolved.
 In practice, most couples actually agree that their marriage has broken down irretrievably though
you may find a lot of women refusing to be divorced. Courts seldom force parties to stay
together.

SEE : DUBE VS DUBE : HH – 176 -11 and Murada vs Murada

 Naidoo vs Naidoo 1985 ( 1) SA 467
 Goneso vs Goneso HH-23-14
 G vs G HH 31-08

GUIDELINES ON IRRETRIEVABLE BREAKDOWN

Provided in section 5 ( 2 )

These guidelines should not derogate from other factors that a court may take into account '' .....
without prejudice to any other facts which may show the irretrievable breakdown .....''

Once any one of those grounds is established , then the court may grant a decree of divorce.

Is the fault factor still relevant as in the old divorce laws - guilty vs innocent spouse e.g. in S 5 ( 2 ) ( b)
- defendant commits adultery which plaintiff considers incompatible with the continuation of a normal
marriage - does that mean that the plaintiff can commit adultery but cannot rely on this as a ground for
divorce ?

The test still remains as set out in section 5 ( 1 ) such that the court should be concerned with whether
or not a marriage has broken down . The question of who is at fault is irrelevant such that a person can
rely on their own conduct be it adultery , cruelty e.t.c as showing irretrievable breakdown.

See the Kruger case in which the court stated that it was no longer necessary for the courts to condone
plaintiff's adultery. See also Ott vs Raubenheimer 1985 ( 2) SA 851

Murisa vs Murisa : HH-28-11: Court has a discretion on concept of irretrievable break down
Chaziremunhu vs Chaziremunhu : HH-147-13: Defendant denying that marriage had irretrievably
broken down . Court found that there were no reasonable prospects of a reconciliation and
ordered a decree of divorce
Magaya vs Magaya HH-67-13
Denesi vs Denesi HH-158-14
Kumirai vs Kumirai HH-17-06
Gonese vs Gonese HH-23-14

GUIDELINE 1 : ONE YEAR SEPERATION

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 Does not mean merely physical or geographic separation but also termination of consortium e.g.
cessation of sexual relations
 If parties are not physically separated, they have to prove the end of consortium
 If physically separated for a period of twelve months or so, lack of consortium presumed - See
Muchada case.
 If twelve months period not continuous, then requirement not met but court can still grant a
divorce because these grounds are not exhaustive. Indeed failed attempts at reconciliation
actually tend to prove irretrievable breakdown. However this would have to under the general
test and not this specific ground.

GUIDELINE 2: ADULTERY
 Adultery to be proved on a balance of probabilities
 In addition to proving adultery, plaintiff must show that he/she regards this adultery as being
incompatible with the continuation of a normal marriage relationship
 Test is subjective
 Allegation by plaintiff cannot be rebutted
 Even if plaintiff has had sexual relations with the defendant after the discovery of the adultery ,
this is irrelevant since condonation is irrelevant to the issue of breakdown- court is concerned
about whether or not the marriage has broken down irretrievably- so old position that
condonation extinguishes the adultery is irrelevant .

GUIDELINE 3 : IMPRISONMENT
 Guideline same as under old law of divorce so needs no further explanation
 Plaintiff whose spouse has been convicted and sentenced even for shorter periods can still
proceed under the general grounds e.g. that she/he was embarrassed by the whole thing , that
the other spouse is dishonest e.t.c.
 Twelve months in jail can suffice to prove ground one, i.e. separation for a period of twelve
months continuous

GUIDELINE 4 : CRUELTY
 Same meaning as under the old law
 See Khoza case
 Its a question of fact in each case

Court can give marriage a chance ; G vs G HH-31-08, Kumirai vs Kumirai and Mashonganyika vs
Mashonganyika HH-10-08

GROUND TWO : MENTAL ILLNESS OR CONTINUOUS UNCONSCIOUSNESS

 An unpopular ground for divorce
 Its really an offshoot of irretrievable break down
 Its cumbersome
 So far not aware of any Zim case on this point
 Parties are fearful of abandoning those who become mentally challenged.

THE MATRIMONIAL CAUSES ACT 1985

Upon recognition of the injustices in the distribution of property upon divorce, the legislature came up
with the above act in 1985. It became law on the 10th of February 1986.
 Prior to act property rights depended on whether marriage was under general or customary law.
If general then whether in or out of community of property. This is still the case while marriage is
still subsisting since act only applies in the event of a divorce.
 Jurisdiction of the High Court - see section 3 Additional jurisdiction
74
 Act only applies on dissolution - Section 7 (1 )
 Court can order transfer of property from one spouse to another
 Act applies to both marriages under customary and general law- see definition of marriage . Now
a Magistrates court has power to dissolve a marriage entered into in terms of the customary
marriages act but there is nothing to bar a divorce action for persons married in terms of the
customary marriages act from being filed in the High Court. One may however be penalised in
terms of costs and get awarded costs at the Mag courts scale. If a marriage is solemnised in
terms of the Marriage Act only the High court can dissolve marriage as a court of first instance

* THE CLAIM FOR PROPERTY SHARING CAN BE BROUGHT AFTER THE DIVORCE- SECTION 7
(1) Chamba vs Ngwarati HH-31-15

What is the matrimonial home – See Mapanga vs Mapanga and others HH -21-04

RELATIONSHIP BETWEEN DIVISION OF ASSETS AND MAINTENANCE

Should courts seek a balance between the two i.e. seek to scale down the property that a spouse gets
in relationship to what they would have received as maintenance or vice versa?

In England Lord Denning in Watchel vs Watchel ( 1973 ) 1 ALL ER 829 held that it should. He
proceeded to scale down the wife’s share of property to one third in order to achieve balance with the
maintenance she had received. Australia adopted same approach

New Zealand has not followed the same approach and has put a rigid distinction between an award of
maintenance and property . The English approach is based on the premise of compensating wife for
bearing children and bringing up family but then maintenance ceases on re marriage and in reality there
can never be such thing as adequate maintenance.

More just approach would be to distribute property in accordance with act and to award maintenance in
accordance with needs of each party

DISCRETION OF COURT

Section 7 ( 4 )
CONSENT PAPERS
Parties can enter into consent papers to govern how they want the property to be distributed but care
must be taken that the consent papers are really by consent and that they are worded appropriately
Court can also take this agreement into account between the parties - consent paper - Section 7 ( 5 )
but one has to be careful how this is worded as there may have to go back to court :

See : Madziva vs Madziva 1996 ( 1) ZLR 314

CASES
1. Alspite Investments vs Westerhoff HH 99 -09 : Respondent alleged that the consent paper
was not in her favour when purchaser of former matrimonial home sold in accordance
with consent paper wanted to move in.
2. Mhlongwa vs Mhlongwa : SC 98-05 ; Person who signs a consent paper is bound by its
contents – signer beware
3. Rundofa vs Magorimbo and another HH -303-12 : Consent paper; property included there
was based on an agreement of sale that was null and void; application to compel transfer
was a nullity

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The guidelines not exhaustive as court can look at ''all the circumstances''- past, present and future
e.g.:
 that wife has since remarried
 husband has acquired most of property on his own or with some other woman after separation-
BENSON VS BENSON HH-6-07; property acquired whilst on separation or before marriage can
be divided because of concept of matrimonial assets – see Gonye vs Gonye and also Nyoka vs
Kasambara HH-88-2008
 Property registered in the name of a company which is a separate legal entity can also be
apportioned – corporate veil lifted – see Gonye case and Mangwendeza vs Mangwendeza ZLR
(1) 2007 page 216 and Sibanda and another vs Sibanda S 117-04
 Husband alone has brought up children of the marriage
 Wife ignored her married status and behaved as if she was single
 husband physically injured the wife so that she was unable to work
 Wife/husband was a spend thrift

THE GUIDELINES
 7 ( 4 ) ( a ) - assess financial income - is this easy in reality - most parties hide their financial
assets. See : Muchada vs Muchada HH-346 -86
 FINANCIAL NEEDS , OBLIGATIONS AND RESPONSIBILITIES WHICH EACH SPOUSE AND
CHILD IS LIKELY TO HAVE IN THE FORSEEABLE FUTURE

Most people need a house.

Future obligations- Is man going to remarry and have more kids who need to be maintained for
example?

 STANDARD OF LIVING
This will obviously drop because when people are married , they usually pool resources together but
when resources are spread, they will never attain the same standard of living

 THE AGE AND PHYSICAL AND MENTAL HEALTH OF EACH SPOUSE AND CHILD
Young wife vs old wife - maintenance no longer a ticket to bread for life. If wife a sickling may need a
proper house to stay in or more maintenance
See : Kangai vs Kangai HH-51-07 : No entitlement to stay in house as of right but a pary can be
given right to stay in house until child turns 18 years : Mrewa vs Mrewa HH-70-08, also in Vito vs
Vito HH- 73-08

 DIRECT AND INDIRECT CONTRIBUTIONS INCLUDING DOMESTIC CONTRIBUTIONS

This is one of the most important guidelines because it takes into account domestic contribution. Prior
to act wife could only succeed if she showed that she had made a direct contribution financially . The
fact that a wife who stays at home frees her husband to work outside the home is now taken into
account. See : Masiiwa vs Masiiwa S -74-06: Combine both direct and indirect contributions

The inadequacies of the old law are illustrated by the case of Chiromo vs Katsidzira :

In reality it may be difficult to attach a value on the domestic contribution and it is also not desirable .
What needs to be looked at is the fact that both husband and wife are bringing equal value to the
marriage through their own different ways.

See : Usayi vs Usayi : S -11-03; It is not possible to quantify in monetary terms the contributions
of a wife and mother who for many years performed duties of wife; mother, counsellor, domestic
worker, house keeper, day and night nurse for husband and children.

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  Nyamaropa vs Nyamaropa HC – 66-87
 Mujati vs Mujati HC-505-87
 Khoza vs Khoza HC-B -106-87
 Masocha vs Masocha HC-183-87

 LOSS OF GRATUITY AND PENSION

The pension and provident funds ( amendment ) regulations 2002 ( no 8 ) SI 180 / 2002 contain a list of
who should benefit from a deceased's pension. First on the list is a surviving spouse and dependant
children.

In the event of a divorce, a former spouse loses his/her status as a spouse and therefore will lose out
on the pension benefit.

 DURATION OF MARRIAGE
Simplified , a wife who was in a relatively short marriage would be entitled to less but this is not always
the case. All the factors should be taken into account because one may have contributed a lot in a
short lived marriage.

THE STATUTORY TARGET

''........and in so doing the court shall endeavour as far as is reasonable and practicable, AND HAVING
REGARD TO THEIR CONDUCT, is just to do so , to place the spouses and children in the position they
would have been in had a normal marriage relationship continued between the parties''

Is this possible and practical? English law was amended to remove this instruction - section 3 of the
Matrimonial Family proceedings Act of 1984
 What would each of the parties position have been had the marriage survived?
 How far is it reasonable and practicable to place each of the parties in that financial position
 Is it just to do so taking into account their conduct ?

TAKAFUMA vs TAKAFUMA 1994 ( 2 ) ZLR 103

When the spouses in this case obtained a divorce, a dispute arose as to the division of a major asset
namely a house. The house was registered in the names of the husband and the wife and the wife had
an undivided half share in the house.

Held: In dividing up the assets, the court must not simply lump all property together and then divide up
in as fair a way as possible. The correct approach is 1st to sort out the property in three lots which may
be termed ''his'',''hers'' and ''theirs''. Then the court should concentrate on the lot marked theirs. It must
then apportion this lot using the criteria set out in section 7 ( 1 ) of the Matrimonial Causes Act . It must
then allocate to the husband the items marked ''his'' plus an appropriate share of the items marked
''theirs''. It must then go through the same process in relation to the wife. Having completed this
exercise, the court must finally look at the overall result and again applying the criteria set out in section
7 ( 1 ) of the Act consider whether the objective has been achieved of placing the parties in the position
they would have been in had the marriage continued in so far as this is reasonably practicable and just,
having regard to the conduct of the spouses.

Further : In the present case, the correct approach should have been to start by dividing equally the
proceeds of the sale of the jointly owned house and then to make adjustments in the light of the
contributions made by the parties towards the purchase of the house and improvements upon the
house and income received by the parties from the house.

Wife acquired Marimba park house after they separated so it does not fall into the common estate.

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Registration of rights in immovable property is a matter of substance .It confers real rights on the
person.

After looking at overall effect of ''his'', ''hers'' and '' theirs'' - after that court should consider taking away
from one or other spouse something which is actually '' his'' or ''hers''.

If property had been registered into the husband's name starting premise would be to apportion it firstly
as ''his '' and then work out how much to take away and give to ''her ''

SEE ALSO : Mangwendeza vs Mangwendeza ZLR (1) 2007 page 216

Sibanda and another vs Sibanda S -117 -04

GONYE vs GONYE – Leading divorce case SC 15/09

KATSAMBA VS KATSAMBA – BEST INTERESTS OF THE CHILD TAKEN INTO ACCOUNT

NEZANDONYI VS NNEZANDONYI HH-115-14- role of the new Constitution and CEDAW

CONDUCT OF THE PARTIES

Divorce law outlaws the fault/ guilty factor so what conduct would justify to be penalised ?
English Courts have taken the approach that the conduct should be '' obvious and gross''
This amounts into a reintroduction of the guilt principle in divorce ( what do the students think )
Should there be a post mortem of the marriage to find out who caused the breakdown ?

In the Masocha case court took into account fact that woman had improperly associated with other men
in scaling down the maintenance award.
 See also the Savanhu case where husband's conduct was described as gross. He had extra
marital affairs e.t.c
 Hughes vs Hughes SC-207-92
 Kassim vs Kassim 1989 ( 3) ZLR 234
 Mrewa vs Mrewa HH-70-08 ; No need to go into fault factor
 Mpofu vs Mpofu HB -99-05: Adultery, wife caught red-handed
 Ntawa vs Nene 1990 (1) ZLR
 Sanders Moyo vs Helen Moyo: Child from another man-looked after until DNA proved otherwise
 Dzvova vs Dzvova HH – 93-08 : Break not so clean after all

CRISP vs MASVIKENI HH -68 -10 ; Does going to the diaspora constitute fault factor-desertion?

SPOLIATION ORDERS ?

Is a spoliation order competent in a divorce matter?

MUZANENHAMO AND ANOTHER VS KATANGA AND OTHERS 1991 ( 1 ) ZLR 182

After separation of 1st and 2nd respondent , being respectively husband and wife , but before 2nd
respondent instituted divorce proceedings, 1st respondent sold the immovable property owned by him
in Harare to the appellants. The sale having been frustrated by second respondent's refusal to permit
the building society inspector access to the premises , 1st respondent forcibly ejected the wife there
from. 2nd respondent having thereafter obtained a spoliation order restoring possession of the home to
her, appellants applied to the High Court on notice of motion seeking to enforce the sale to them. 1st
responded tendered payment of half of the proceeds of the sale to 2nd respondent.
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The High Court having refused this application on the grounds inter alia that 2nd respondent had an
interest in the property under section 7 of the Matrimonial Causes Act 1985 which interest was subject
of the dispute between the 1st and 2nd respondent in the pending divorce action and also the
Registrar of Deeds , 4th respondent had been correct in refusing to register transfer of the property
because of the existence of the spoliation order.

Held: That the right of occupation of a wife to remain in occupation ( based on a claim under section 7
of the Matrimonial Causes Act) as against her husband depends upon the exercise of purely
discretionary remedies but that the rights as between spouses are personal inter se and do not affect
third parties regardless of whether the latter are aware of the dispute.

Held: A wife cannot prevent her husband from disposing of assets unless he is thereby attempting to
defeat her just rights and that the 2nd respondent had not shown any equitable consideration which
warranted intervention on her behalf by the court.

Held: Further that a wife's right of occupation due to her status as a wife is essentially a matter of
equity and the courts will intervene where for example the husband disposes of the home as a policy of
harassment arising out of divorce proceedings.

Held: However even if husband is the defaulting party , he may eject the wife from the matrimonial
home provided he offers her suitable alternative accommodation.

Held: The existence of the spoliation order relating as it did only to possession of the house , did not
preclude transfer of the property to appellant as they were not party to the spoliation proceedings was
nor bar to a claim by them for 2nd respondent's abetment.

MANGA vs MANGA 1991 ( 2 ) ZLR 251 ( SC )

When one of two joint possessors of a thing illegally takes exclusive possession of that thing, a
mandament van spolie will lie at the instance of the other possessor in the same way as if the applicant
had enjoyed exclusive possession.

The respondent who was married to the appellant , left the matrimonial home taking with him certain
items which had up to then been in possession of both spouses. The appellant delayed for some five
months in bringing her application in the court a quo although the commencement of the action was
preceded by several demands for restoration of the claimed items.

Held: Appellant was entitled to a spoliation order . The appellant's delay in instituting proceedings did
not amount to acquiescence in the dispossession.

See also : Vant’Hoff vs Vant’ Hoff and others 1988(1) ZLR 294

EVICTION OF ONE SPOUSE PENDING DIVORCE

MAPHOSA vs MAPHOSA 1990 ( 2 ) ZLR 37 SMITH J

Where the respondent sought to exclude the applicant from the matrimonial home without offering her
alternative accommodation or the means to acquire such and where there was no evidence that it was
impossible for the parties to live together in the same house , the court affirmed the wife's right to
remain in the matrimonial home.

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Wife went to Norton to her parents for a '' re - education '' When she came back after two weeks ,
husband refused to let her in . She instituted divorce proceedings.

COUTINHO PETULA CAROLINE vs JEAN MARIE DE SUUTIN COUTINHO HC - H - 4 - 90

Wife applied for husband to be evicted from the home they were staying pending divorce. In HALL vs
HALL 1971 ( 1 ) ALL ER 762, Lord Denning stated that for an interdict of this nature to succeed, it must
be shown that living together is impossible before this drastic remedy is granted. Unpleasantness,
inconvenience and tension pending divorce are not sufficient grounds. As regards the interests of the
children, the longer they can be brought up together in one house , with their parents the better.

Allegations of influencing the children were made. The respondent was not in a sound financial position
. The parties slept in different bedrooms though applicant cooked for the respondent. The latter went to
work early and came back late. There was minimal contact between then.

PROPERTY EXCLUDED FROM THE COURT'S POWERS OF DIVISION

Section 7 ( 3 ) Matrimonial Causes Act

Custom - Examples of property under customary law that can be excluded- Land in the communal area
- wife stays at the mercy of husband and according to custom. At divorce she loses her status as wife
and must leave the communal home. No case authority as yet but it seems that generally houses in the
communal area are excluded. In the KHOZA case, wife awarded house in the urban area on basis that
she could not get house in the communal area.

See also: Mpofu vs Mpofu

Look at the other exclusions- are they fair?

EXTENT OF APPLICATION OF THE MATRIMONIAL CAUSES ACT

 Section 7 overrides customary law
 Powers extend to all marriages under general law that are out of community of property
 Act ambiguous on whether or not discretionary power extends to marriages in community of
property where property should be divided equally notwithstanding contributions made by each
party. Wording of section 7 does not put such marriages beyond reach of act - Position is
unclear ( what do students think )
 Act does not apply on dissolution by death .
 Act also applies in the dissolution of a bigamous marriage – putative marriage – Manjala vs
Maposa HH-171-13

ANALYSIS OF THE MATRIMONIAL CAUSES ACT

Act is based on judicial discretion which is very wide. This can be shown by case law.

MAGANGA vs SAKUPWANYA 1996 ( 1 ) ZLR 217

Mrs Sakupwanya sued her husband for divorce. She sought 1/2 share in the matrimonial home . During
the hearing it emerged that Mr Sakupwanya had sold the house to a Miss Muganga for the amount of $
20 000 . The house was worth at least $ 402 500.

Held: The husband and Miss Muganga who were on intimate terms had entered into a sham contract of
sale in order to take the house out of the matrimonial estate before the divorce was finalised. In this
way , the house would remain in the hands of the husband and his lover after the divorce. This
80
transaction was deliberately entered into with the fraudulent intent to deprive Mrs Sakupwanya of her
chance to claim her prior share in the property.

Held: Mrs Sakupwanya was entitled to 50 % of the real value of the matrimonial home.

MASIMIREMBWA NO vs CHIPEMBERE 1996 ( 2 ) ZLR 378

Appellant was the executor of the late wife of the respondent. The marriage had been dissolved in 1989
but it was not until 1990 that the deceased instituted an action in terms of section 7 of the Matrimonial
Causes Act for a share in the former matrimonial home .

After the respondent had entered appearance to defend and pleadings had been closed, the deceased
died. The appellant as executor of the estate obtained leave to be substituted as plaintiff. The High
Court held that the claim had passed to her estate but it would not be an equitable exercise of his
discretion to make an order in terms of the section. On an appeal:

Held: That the purpose of section 7 of the Act is to place the spouses and children in the position they
would have been had a normal marriage continued. In making an order , the court must consider
among other things the income of each spouse and child, their financial needs and obligations, their
standard of living and their age and there physical condition. These factors clearly indicated that the
claimant spouse must be alive at the time of the making of the order. Any duty to maintain for example
ceases on the death of the party claiming support and is not transmissible . For the same reason a
claim for the division , apportionment or distribution of the assets of spouses under section 7 is not
transmissible even though this finding would not preclude a common law action to recover whatever
financial contribution had been made by the deceased toward s the purchase of the property.

Rights in personam rooted in the common law of a nature which are transferable will pass to the
executor of the claimants estate if the stage of litis contestation had been reached in the action brought
the enforce them.

See also : Chivhiya vs Chivhiya 1995(1) ZLR 210

 Motsi vs Motsi SC 78/92
 Mafunda vs Mafunda SC 112/92
 Mawengere vs Mawengere HC-H-110/92
 Shahwe vs Shahwe HH- 142-92
 Moyo vs Moyo HB-84-92
 Mudzingwa vs Mudzingwa HB-33-92
 Wamambo vs Wamambo HH-1594/91
 Nyathi vs Nyathi HB-77-89
 Khumalo vs Khumalo –HB-80-89
 Rannie Ncube vs Ncube HB-4-90
 Toma vs Toma HB-14-90
 Nyoni vs Nyoni HB-74-90
 Savanhu vs Savanhu HH-231-91

CASES –RECENT

1. Makore vs Zarura HH -295 – 12

2. Vito vs Vito HH-73-08 : 50/50 share
3. Matipedza vs Matipedza – HH 323 -12: Sharing of property acquired before divorce
4. Moore vs Moore : HH- 233 -12
5. Williams vs Williams : HH- 275 -12 : Shares in a company
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 6. Lungu vs Lungu HH -210 -12
7. Sadomba vs Sadomba HH 364 -12
8. Masuko vs Masuko – HH – 204 -12 ; Property situated in rural setting was the only
significant immovable property- court ordered that it be sold and proceeds shared equally
9. Makoni vs Makoni HH -112 -11: Property acquired before marriage
10. Masiwa vs Masiwa SC 74-06
11. Chinyavanhu vs Chinyavanhu HH -156 -09
12. Makosa vs Makosa HH-62-10
13. Crisp vs Masvikeni HH- 68 -10: Lifting of corporate veil
14. Masawi vs Masawi HH -22-11
15. Mupudzi vs Mupudzi HH -24 -11
16. Mhlanga vs Mhlanga HH -70- 11 : Property registration in the names of the children
17. Chigonde vs Chigonde : HH- 118-08
18. Chiutsi vs Chiutsi HH -134 -09: Wife given right to stay in house until youngest child
turned 18
19. Mutseta vs Mutseta HH – 71- 10
20. Makani vs Makani HH -74 -10 : Direct and indirect contributions
21. Kanoyangwa vs kanoyangwa – HH – 23 -11: Sharing of property that is jointly registered,
courts start at 50% each and can reduce the other’s share – grounds for reduction
22. Muzongondi vs Muzongondi HH – 27- 11
23. Dicks vs Dicks HH -61 – 11
24. Chikonye vs Chikonye HH-04-13: Property registered in joint names : 40/60% share of
immovable property
25. Mauro( nee Nyambo) vs Mauro; HH-365-13: Immovable property subdivided into two
properties
26. Musvosvi vs Musvosvi HH-163-2013: Wide discretion available to court
27. Muchuchuti vs Muchuchuti HH-221-13: Wide discretion
28. Chaparadza vs Chaparadza HH-322-13 – 20% to wife and 80% to husband of the
immovable property
29. Chitofu vs Chitofu HH-265-13: Wife awarded 10% of immovable property on basis that the
house in question had been acquired by her husband with another wife who had since
passed on
30. Makosa vs Makosa HH-62-10
31. SIMANGO VS SIMANGO SC 29/14
32. KWEDZA VS KWEDZA SC 73/14
33. CHIUTSI VS CHIUTSI HH-134-09

VARIATION OF DIVORCE ORDER : NCUBE VS NCUBE HB-13/14: Divorce orders should have
clauses to protect litigants in the event that someone does not fulfil their end of the bargain.

WHICH WAY FORWARD?

Gonye vs Gonye ; look at the matrimonial assets of the parties, so property acquired before marriage
and after separation can be divided. Property registered in the name of a company can be divided by
lifting the corporate veil. The discretion seems to lie heavily on the Judge concerned. If he is a male
chauvinist who does not place value on the domestic contribution by a wife, he may not give much to
the woman.

How does one reconcile the duration of the marriage to the attempt to place the parties in the position
that they would have been had a normal marriage survived.

This is an area for advocacy and more research

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 CHAPTER 9 : UNREGISTERED CUSTOMARY LAW UNIONS

UNREGISTERED CUSTOMARY LAW UNIONS : PROPRIETARY CONSEQUENCES

No area of law has vexed the judiciary in the family law arena ( apart from inheritance ) as what to do
with customary law unions at their dissolution. The Law development commission has commissioned an
inquiry paper into what can be done to resolve this issue.

Our courts are not sure which principle of law should apply - unjust enrichment or universal partnership.

The problem arises from the fact that an UCLU is only valid for limited purpose but otherwise its
regarded as invalid. In the eyes of the law the parties are regarded as not being husband and wife but
in researches done it is apparent that this is the most common type of ''marriage '' amongst Africans.
See Mandava vs Chasweka – Calls for invocation of the choice of law process to determine
whether general or customary law applies.

Choice of law process

Cases

1. Lopez vs Nxumalo SC 115 – 85

2. Musakwa vs Musakwa SC 11/84
3. Katekwe vs Muchabaiwa 1984 (2) ZLR 112
4. Kusema vs Shamva HH -46 -03
5. Mandava vs Chasweka HH – 42-08
6. Mabuto vs Bhila HB- 108 -05

One must however first prove the existence of the UCLU – SEE MOYO VS CHIDUMO HB-42-13
and Hosho vs Hasisi HH-491-15

Case law will illustrate the dilemma faced by the courts

ALSO REFER TO THE ENQUIRY PAPER FROM THE LAW DEVELOPMENT COMMISSION

 Chapendama vs Chapendama 1998 ( 2) ZLR 18 – Tacit universal partnership used

 Mashingaidze vs Mashingaidze 1995 (1) ZLR 219 – Need to plead a cause of action
properly
 Mtuda vs Ndudzo HH – 103-00 : Tacit universal partnership – requirements set out-unjust
enrichment used
 Matibiri vs Kumire 2000(1) ZLR 492: Claim of universal partnership dismissed
 Chapeyama vs Matende and another
 Jengwa vs Jengwa
 Mashingaidze vs Mugomba
 Marange vs Chiroodza
 Feremba vs Matika
 Ntini vs Masuku
 Muchapondwa vs Madake
 Goncalves vs Rodrigues : Contrast – women who are co-habiting seem to have better
rights
 Nyamwanza vs Masiiwa HC -95-2000

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  Chauraya vs Makororo HH -362-13: Clarion call to lawyers to plead the correct cause of
action- unjust enrichment
 Godza vs Sibanda HH-254-13 – Parties entered into a deed of settlement but sought to
vary it ( novation) so it is possible to enter into a deed of settlement ( more like consent
paper at divorce)
 Mashongedza vs Mutsvanga HH 214/13: Unjust enrichment, case properly pleaded,
property shared
 Shaamano vs Nkosi HH-02-2013: Need for clarity on what cause of action the plaintiff is
relying on. The marriage was an UCLU but plaintiff approached the court as if it were a
registered marriage
 Mandava vs Chasweka HH-42-08
 Chikavhanga vs Kuyeri and anor HH-19-1

PASIPANODYA vs MUSHORIWA 1997 ( 2 ) ZLR 182

The appellant and the respondent had been married in an UCLU . The marriage broke down
irretrievably . The appellant sought a half share of the matrimonial property . There had been a special
plea that the claim had prescribed.

Held: Section 3 ( 2 ) of the Prescription Act did not apply to any right or obligation of one person in
relation to another that is governed by customary law.

Further : Even if the Act had been held to apply to the claim, still would not have prescribed . The
marriage had not been dissolved as an UCLU can be dissolved under customary law . When the parties
had separated , there was no proper dissolution of the matrimonial property. In the circumstances , the
appellant's claim for a formal distribution could not have been prescribed.
 There is no clear authority on how to handle dissolution of property acquired in an UCLU
 The courts have used both the universal partnership concept and unjust enrichment
 Choice of law process
 Equity consideration
 Can the courts use the criteria set out in section 7 of the Matrimonial causes act?

CASES; LAWYERS SHOULD PROPERLY PLEAD A CAUSE OF ACTION AND NOT TREAT AN
UCLU AS A MARRIAGE

1. Chikavhanga vs Kuyeri and anor : HH -319-12

2. Nyoka vs Mureza HH -49-10
3. Mukonde vs Zengeni HH 133 -11

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FAMILY LAW ADDITIONAL READING LIST
The choice of law process
1. Kusema vs Shamva HH- 46- 03

2. Mabuto vs Bhila HB -108 -05

3. Mandava vs Chasweka HH-42-08

Paternity
1. Timbe vs Registrar general SC -25 -08

2. Mtshingwe vs Moyo HB 120 -05

3. Shumba vs Shumba HB -25-05

Children born in and out of wedlock

1. Timbe vs Registrar General SC -25-08

Guardianship, custody and access to children

1. Samudzimu vs Ngwenya HH – 92-08

2. Harris vs Harris HH -20 -09

3. Berens vs Berens HH- 28-09

4. Tawonanhasi vs Tshuma and others HB-63-08

5. Pissas vs Pissas HH -35-08

6. Makumbe vs Chikwenhere HB -42-03

7. Jere vs Chitsunge HB-10-03

8. De Montille vs De Montille HB-20-03

9. Domboka vs Madhumu HH -179-04

10. Ralph vs Van Vuuren HH-05-09

11. Shumba vs Shumba HB-25-05

12. Ex Parte Ndlovu HB-116-04

13. Lothian vs Valentine HH-97-07

14. In Re Maphosa HB-115-07

15. Musonza vs The Master HH-89-07

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 16. Ncube vs Guni HH -129-09

17. Musonza vs Master of the High Court HH-89-07

18. Cormick vs Cormick HH-15-2007

19. Erasmus vs Erasmus HH-40-2007

20. Maphisa vs Maphisa HB-65-09

21. Peacock vs Steyn HB-81-10

Maintenance of children
1. Chakras vs Chakras SC -30-02

Maintenance at divorce
1. Kangai vs Kangai HH-51-2007

2. Cormick vs Cormick HH-15-2007

3. Mandeya vs Mandeya HH-93-2008

4. G vs. G HC-21/07

Marriage
1. Chivise vs Dimbwi HH-4-04

2. Sibanda vs Sibanda and another HH-90-02

3. Magondo vs Magondo HH -174 -02

4. Chinho vs. Chinho and others – pension policy – two wives – 1st one married under customary law
, 2nd Chapter 5:11 , both recognised as wives for purposes of pension

Personal consequences of marriage

1. Jhamba vs Mugwisi HB -1-10

2. Nyandoro vs Tizirai HH-12-06

3. Jonasi- Ogundipe vs Chief Immigration Officer and others SC-13-05

4. Makulumo vs Chief Immigration Officer and another SC-64-03

5. Mudyanduna vs Mukombero and others SC- 63-03

6. Muyambo vs Bere HH-30-2007

7. Gwatiringa HB-119-09

Matrimonial property rights of spouses

1. Gonye vs Gonye SC- 15-09

2. Dzvova vs Dzvova HH- 39-08

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 3. Usayi vs Usayi SC-11-03

4. Magurenje vs Maphosa and others HB-69-05

5. Mpofu vs Mpofu HB-99-05

6. Sibanda and another vs Sibanda SC-117-04

7. Muswore vs Makanza HH-16-05

8. Maponga vs Maponga and others HH-21-04

9. Masiwa vs Masiwa SC-74-06

10. Margaret Dongo vs The Registrar General and the AG SC 6/10

11. Benson vs Benson HH -6-07

12. Semwayo vs Semwayo and another HC-48-2007

13. Vito vs Vito HC- 73-2008

14. Nyoka vs Kasambara HH-88-2008

15. Moyo vs Moyo HB- 34-09

16. Tobaiwa vs Kaseke and others HH – 74-2006

17. Tobaiwa vs Kaseke and others HC-131-03

Unregistered customary law union

1. Mandava vs Chasweka HH-42-08

2. Ntini vs Masuku HB-69-03

3. Muchapondwa vs Madake HH-32-06

4. Goncalves vs Rodrigues HH-197-03

5. Feremba vs Matika HH-33-07

6. Kazuva vs Dube HB – 119-10

7. Muringaniza vs Munyikwa HB-102-03 Putative marriage

Divorce
1. Kung vs Kung SC -16-08

2. Murada vs Murada HB -119-08

3. G vs G HH-31-08

4. Galante vs Galante HH-31-02

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5. Kumirai vs Kumirai HH-17-06

6. Latif vs Latif SC -49-04

7. Chikwenengere vs Chikwenengere SC- 75-09

8. Dzvova vs Dzvova HH -39-08

9. Mashonganyika vs Mashonganyika HH-10-08

10. Mrerwa vs Mrerwa HH-70-08

11. Mudenda vs Mudenda HB-36-09

88