FAMILY LAW NOTES:

THE STATE, MARRIAGES, FAMILIES, WOMEN

AND CHILDREN. DEFINITIONS 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
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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.

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

OTHER EXPLANATIONS OF THE FAMILY EVOLUTION

 Economic factors - need to maintain land holdings 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 (changing) 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 whom maintain a
socially - approved sexual relationship, 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

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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.

THE 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 a 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 through 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

The paradigm(model/ideal) of socially approved sexual relationships is also being
questioned because we now have one parent families , the lesbian and gay family
( there is a storm brewing in the USA because California mayor has legalised same
sex marriages and Bush has threatened to pass a law outlawing these) . We also have
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the cohabitation family. In other jurisdictions couples who are in gay and lesbian
relationships are allowed to adopt children.

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... thru 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 polygny. Polygamy refers to having
many mates of the opposite sex while polygny 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 FAMILY IN ZIMBABWE

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Early writings focused on tribal influences. According to Ratcliffe 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.

AGNATIC KIN/AGNATES: 2 persons are agnatic kin when they are related thru
the father

AFFINAL KIN/AFFINATES: 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
family but this was mostly rural Shonas.

 Patrilineal society

 mutupo

 chidawu

 Chizvarwa: group of agnates (related thru the father) 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 (related thru marriage) 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

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 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, 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 de
facto (existing but not legally established) 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. Repositees 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 repositees who may come in
large numbers.

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

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

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 FAMILY
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.

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.
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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 Marriage 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 (Discuss the
aplomb (assurance) given to the whole ceremony)

D.P.F.M.A - does not define family but has a section dealing with dependants who
may benefit from a deceased persons estate. But the Act in the day to day living
does not encompass what or 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 is 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 these more important than in
marriage laws.

INTERNATIONAL HUMAN RIGHTS

STANDARDS AND THE FAMILY
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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.

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination

against women in all matters relating to marriage and family relations and in
particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its
dissolution;

(d) The same rights and responsibilities as parents, irrespective of

their marital status, in matters relating to their children; in all cases
the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number
and spacing of their children and to have access to the information,
education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship,

wardship, trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation; in all cases the
interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right
to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition of
property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all
necessary action, including legislation, shall be taken to specify a minimum age for
marriage and to make the registration of marriages in an official registry compulsory.

S 28 African Charter of People's and Human Rights and the recently adopted
optional protocol.

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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.

INTERNAL CONFLICT OF LAWS

When one thinks of conflict, it denotes either warfare or struggle. However when it
comes to the law, conflict denotes a dispute about applicability of either two or
more systems of laws.

Internal conflict refers to conflict within a country between two or more systems
and external conflict refers 2 disputes between two systems of two or more
countries- Private international law. Welshman Ncube covers it well and so does Dr
Galen in the Zimbabwe Law Review Vol 1 and 2 1983 - 4.

HISTORICAL CONTEXT

In public law areas like criminal and constitutional law, all people were subject to the
same laws. In private law however, the situation was different. Race became the
determining factor in the area of family law.

For a while, customary law was permitted to run side by side with general law based
on the race criteria. Problems arose however when the Africans became assimilated
in the European way of life, they contracted marriages in terms of civil rights e.t.c.

The Constitution of Zimbabwe makes statute law override common law. It also makes
the application of general law subject to any statute on the application of customary
law.

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Conflict between customary law and general law: Provisions of section 3 of the
Customary Law and Local Courts Act provide guidelines. This act puts general law
and customary law at par hence we have a dual system of law. It abolished race as a
criteria but uses social class and position of individual litigants. This section came
into effect on the 1st of November 1997 and repealed the customary law application
act in which the choice of law criteria was set out.

If a particular issue is dealt with in terms of any enactment / statute then the
statute will take precedence.

(EXAMINE THE ACT)

Where in a case there is an issue as to which system of law is to apply, it will be

necessary for the court to decide that issue before hearing the case.

Read (Dr Galen's article) but should be read with the changes to the law in mind.

Section 3 of the Customary Law and Local Courts Act: came into effect from 1st
November 1997.
3 Application of customary law
(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires—
(a) customary law shall apply in any civil case where—

(i) the parties have expressly agreed that it should apply; or

(ii) regard being had to the nature of the case and the surrounding circumstances, it appears that the
parties have agreed it should apply; or
(iii) regard being had to the nature of the case and the surrounding circumstances, it appears just and
proper that it should apply;

(b) the general law of Zimbabwe shall apply in all other cases.

(2) For the purposes of paragraph (a) of subsection (1)—

“surrounding circumstances”, in relation to a case, shall, without limiting the expression, include—

(a) the mode of life of the parties;

(b) the subject matter of the case;
(c) the understanding by the parties of the provisions of customary law or the general law of Zimbabwe,
as the case may be, which apply to the case;
(d) the relative closeness of the case and the parties to the customary law or the general law of
Zimbabwe, as the case may be.

SEDUCTION
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Question = what is to seduce?

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.

The delict is sui generis (unique) - 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

(1) 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

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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) PRESUMPTION OF VIRGINITY

It is difficult to rebut this presumption because if woman proves sexual intercourse

and her spinster (single) 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
(how long?). If woman continues to stay with a man believing that he will
marry her, her action remains intact.

 Some man may offer to marry the seduced woman but this is not a defence
and a bar to a claim for damages.

 The fact that the girl may “very readily and with very little persuasion” have
succumbed to his solicitations is no defence(Scholtmeyer vs. Potgieter)
quoted in (Bull vs. Taylor)

DAMAGES
 Damages are meant to compensate the seduced woman for the loss of her
virginity (Machokoto vs. Mabika)(Katekwe vs. Muchabaiwa)

 Diminished prospects of making a suitable marriage (Katekwe,Machokoto)

 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.(Machokoto)

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 The manner in wc the seduction took place is also considered, wth factors
that incline 2 raise the awards being such as:

the dff’s taking advantage of pff’s intoxication ( Botha vs. Peach), or

the dff being much older than pff (De Stadler vs. Cramer), or

the pff was seduced under a false promise of marriage (Hannah Hart
vs. Myer Yates)

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. ( Machokoto)

NB* (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.(Katekwe)

THE LEGAL AGE OF MAJORITY ACT 15/82 (NOW

PART OF THE GENERAL LAWS AMENDMENT ACT)

LAMA AND ITS EFFECT ON SEDUCTION (now contained in the GLAAct)

15 Reduction of age of majority from 21 to 18 years
(1) On and after the 10th December, 1982, a person shall attain the legal age of majority on attaining
eighteen years of age.
(2) A person who immediately before the 10th December, 1982, has not attained the legal age of majority
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shall on that date attain the legal age of majority if he or she has then already attained eighteen years of age.
(3) Subsections (1) and (2) shall apply for the purpose of any law, including customary laws and, in the
absence of a definition or any indication of a contrary intention for the construction of 'full age', 'major',
'majority',
'minor', 'minority' and similar expressions in-
(a) any enactment, whether passed or made before, on or after the 10th December, 1982; and
(b) any deed, will or other instrument of whatever nature made on or after that date.
(4) This section shall not affect the construction of any such expression as is referred to in subsection (3) in
any enactment relating to taxation or pensions.
(5) Nothing in this section shall be deemed to prevent any person attaining his or her majority by operation of
law earlier than on attaining eighteen years of age.

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 (evident) 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

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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 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 ( In those days there were no cell phones
so woman would have to board a bus to seek permission and by the time she went
back, the man would have lost interest)

One of the leading texts on seduction is by Van Den Heever and he basically
reiterates the three requisites of seduction under general law:

 That the woman has been seduced

 There has been sexual intercourse

 The woman was a virgin at the time of seduction

- (laid out in Machokoto vs. Mabika)

in Bull - vs. - Taylor 1965 (4) SA 29 it was held that:

”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 efforts. The statement that the
underlying idea of seduction is “leading astray” is also acceptable provided it is
understood that the “leading astray” is a leading astray of a woman from the path
of virtue, and that this ,and not the means - deceitful or otherwise - by which it is
achieved is the essential feature of seduction.”

-also in Bull - vs. - Taylor 1965 (4) SA 29 the following dicta were quoted with
approval by Beyers JA:
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Van den 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
(flatter/coax/persuade) or solicitation assailed the chastity of a female or procured
a chaste woman to become unchaste”

Seduction is presumed on the part of the man

(Discuss the effect of Magaya vs. Magaya on seduction. See the article by Ellen
Sithole in the legal forum. The underlying issue is that views expressed by
Muchechetere were obiter dictum) Issue can be debated

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 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.

“In the usual b.o.p.2.m cases there is an underlying element of fraud and deceit. It
shd be regarded as an action both ex contractu and ex delicto” Wessels in Law of
Contract

Van den Heever agrees with the authorities that the remedy 4 b.o.p.2.m is sui
generis i.e. “it is a remedy sui generis having the features in common with an action
on contract and an action in delict ”

NB-Both Vann den Heever and Wessels are quoted with approval by Beyers JA in
Bull vs. Taylor

BREACH

 Contractual damages for actual breach

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 Delictual damages for the manner in which the promise is broken – Contumelia
(sentimental loss). See the circs in Mazarire vs. Magoronga and more so in Bull
vs. Taylor (wedding arrangements were all but complete)

 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:

1. Were the circumstances hurtful or injured the innocent party's feelings. See
Bull vs. Taylor (dff and pff had worked pooling their resources 2getha and built in
something like an estate, promise repudiated after abt 2 or so yrs in courtship &
after wedding arrangements had been completed)

2. 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. Having
proved contumelia and breach the pff in Bull vs. Taylor was awarded both delictual
as well contractual dmgs

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.

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 Mistake

 Drunkenness: Britney Spears act but difference being that she actually went
through a marriage ceremony with a guy in an alleged drunken stupor.

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. e.g. other party is gay

Voet 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. In

Bhazuwere vs. Munene it was held that the failure by a woman to tell the man
that she had previously had a child by another man could amount 2 justa causa
4 repudiating the promise 2 marry

 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

19
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.

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.

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.

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.t.c?

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
20
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.

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 (both parties are in equal guilt) so void. Position of
possessor is stronger and party who gives it cannot claim if marriage does not
materialise.(the loss lies where it falls)

PATERNITY
While maternity (who is the natural mother of a child) is never in doubt (surrogate
<substitute> 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.”

CHILDREN BORN IN WEDLOCK

 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 (the father is the person indicated by marriage)- 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 the
woman was married to before the divorce in other words the man the 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)
21
 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 by

any interested party - bastardisation action i.e. action to prove that actually the
child does not belong to a particular man and was born out of wedlock.

Proof - father could not possibly be the father not that he is probably not the
father i.e. proof of impossibility not improbability see Moyo vs. Sifelani where the ff
qtn was determined; how can it be said that he can discharge the onus on a balance
of probabilities, and in the same breadth that he must establish the impossibility
(not merely improbability)that he could be the father? Total exclusion of paternity
e.g. sterility, lack of access at the relevant time or blood tests that exclude
paternity.

In that Moyo vs. Sifelani case, Mcnally JA quoted wth approval the statement made
by Kriek J in Mohamed vs. Shaik where a man consents to intercourse but denies
paternity that:

“in any event it is clear that, even if the admission made on appellant’s behalf… is to
be qualified 2 the extent that it only related to sexual intercourse…some months
after the probable period of conception, that admission created a presumption that
appellant was the father of respondent’s child, and placed upon him an onus of
proving that he could not have been the father…

…it is 2 be emphasized however…that although proof on a balance of probabilities

will suffice in order to rebut the presumption, such proof must relate to a total
impossibility that the person bearing the onus could be the father of the child in
question”

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 is not the father so
that does not suffice to rebut the presumption ( Exceptio plurium concumbentium)

BLOOD TESTS
In Zimbabwe, blood tests are currently carried out at National Blood Testing
Services (NBTS). An individual cannot approach NBTS for tests. He has to go
through a lawyer or by order of court. 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 children).

22
Blood tests can establish a man's non paternity but not his paternity. 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 if the
person is unwilling or unable to do so has not yet been decided in our courts (Should
they do so?)

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.

(Discuss with students on these issues and also DNA and HIV/AIDS testing)

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 (Mayer vs. Williams –
corroboration of woman’s evidence not a pre-requisite)- 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

23
 mero mutu. 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 (Moyo vs. Sifelani, and cases cited therein S vs. Swart,
Mohamed vs. Shark, Green vs. Shirto )

(a) Sterility (Mohamed vs. Shark)

(b) blood tests that exclude man from paternity (Dube vs. Ndove)

(c) non access to the woman at the relevant time. See dicta at the end of the
Moyo case.

 If man admits sexual intercourse at any time (Mohamed vs. Shark), 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 (See dicta at the end of the
Moyo case)- 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. In the case of Mohamed
vs. Shaik dff had led evidence that “chances of his being sterile 2 years ago
are very likely”. The court found this evidence 2 be unreliable 4 various
reasons and thus found that he had failed 2 prove on a balance of
probabilities that he was sterile at the relevant time…even if the medical
evidence had been accepted as correct on a b.o.pbb he would still’ve failed
because that evidence didn’t prove absolute sterility

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 impregnate a woman.

Impotence can be accompanied by sterility - double jeopardy

24
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 (lambasted in Mazarire

vs. Magoronga-where Manyarara JA dismissed the Gutu High tr’s assertion
that the seduced major spinster who was a bartender was a common
prostitute )- 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
(see S vs. T 1988) - 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
(unlawful) 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.

25
Ex-husband must admit to the post divorce sexual intercourse if presumption of
paternity should apply to him.

CUSTOMARY LAW PATERNITY

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.

Colonial courts took the view that the resolution of paternity disputes under
customary law should be dealt with in terms of Roman Dutch Law.

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 then if this was accepted, the
rights of guardianship and custody given to the man

(Discuss the issue of Chiredzwa)

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, 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.

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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

 clothing and food for the child

In other cases Card - vs. - Sparg : 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
14 Legitimation of adulterine children
Where the father or mother of an illegitimate person was married to a third person when the illegitimate
person was born, and the parents of the illegitimate person marry or have married one another after the birth of
that person, the marriage shall render that person, if living, legitimate from the date of that person's birth

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 he cannot be the father. Proof by the man on a balance of probabilities will
27
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.

TERMINATION OF PREGNANCY

The issue of T.O.P is governed by the Termination of Pregnancy Act 15: 10. There
are only three grounds on which a pregnancy can be terminated and these are set
out in section 4.
4 Circumstances in which pregnancy may be terminated
Subject to this Act, a pregnancy may be terminated—
(a) where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes
a serious threat of permanent impairment of her physical health that the termination of the pregnancy is
necessary to ensure her life or physical health, as the case may be; or
(b) where there is a serious risk that the child to be born will suffer from a physical or mental defect of such
a nature that he will permanently be seriously handicapped; or
(c) where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.

Section 4 - unlawful intercourse - Although the Sexual Offences Act criminalised

marital rape, for purposes of unlawful intercourse, marital rape is not considered as
a ground to terminate a pregnancy.(Is this fair?)

Unlawful intercourse now defined as “…rape, other than rape within a marriage, and sexual
intercourse within a prohibited degree of relationship, other than sexual intercourse with a person referred to
in paragraph (i) or (j)of subsection (1) of section 75 of the Criminal Code”(s4)

Mental health is not a ground for terminating a pregnancy. Economic factors are also
not recognised as a ground for termination.

Should HIV/AIDS be a ground for terminating a pregnancy?

Ex parte Miss X 1993 (1) ZLR 233

28
DOMICILE
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.

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

REGISTRATION OF BIRTH
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 records 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

OBJECTIVES OF THE ACT:

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

29
  Registering for school.

 Applying for a national identity document.

 Applying for a passport.

 Applying for a job.

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

A birth certificate is needed for the following:

 School registration

 Applying for a job

 Applying for a passport

 Applying for a national I.D

 Getting insurance

 Proof that one is a child of the deceased for inheritance purposes

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

WHO REPORTS THE BIRTH OF THE CHILD?

30
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.

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.

31
REGISTRATION OF A BIRTH OF A CHILD WHOSE
PARENTS ARE NOT MARRIED TO EACH OTHER
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.

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.

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.

CHANGING OF NAME ON BIRTH CERTIFICATE

32
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.

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.

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 & Anor 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

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

33
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.

CHILDREN OF PARENTS WHO ARE IN ZIMBABWE ILLEGALLY

Unfortunately, if the parents are in Zimbabwe illegally, they will not be able to
register the birth of the child.

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:

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

34
LEGITIMACY AND ADOPTION

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.

 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.

TYPES OF ILLEGITIMATE CHILDREN AND

METHODS OF LEGITIMATION
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

35
The word speaks for itself. An adulterine child is one born out of adulterous sexual
intercourse i.e. one of the parents 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 the section).” Where the father or mother of an illegitimate person was married to a third
person when the illegitimate person was born and the parents of the illegitimate person marry or have
married one another after the birth of that person, the marriage shall render that person, if living, legitimate
from the date of that person's birth.”

Section 14 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 as 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 born out of incestuous relationships are
likely to be physically and mentally challenged. (Jerry Springer). No issue of
legitimation because parents can never validly enter into a marriage .No reason why
such children cannot be legitimated by adoption.

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.

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PUTATIVE MARRIAGE
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.

ANNULLED MARRIAGE
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. “ Where a decree of

nullity is granted in respect of a voidable marriage, any child who would have been the legitimate child of the
parties to the marriage if it had been dissolved instead of being annulled, at the date of the decree, shall be
deemed to be their legitimate child notwithstanding the annulment.”

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

LEGITIMACY UNDER CUSTOMARY LAW

Two distinct concepts apply:

 Parental rights and duties towards a child - custody, maintain and protect
child, right to receive lobola or pay lobola.

 Patrilineage - succeed to the father's name and genealogy

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

37
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... ” Where the
father or mother of an illegitimate person was married to a third person when the illegitimate person was born
and the parents of the illegitimate person marry or have married one another after the birth of that person,
the marriage shall render that person, if living, legitimate from the date of that person's birth.”

ARTIFICIAL INSEMINATION (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.

(What do students think?)

ADOPTION
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.

Sec 64 Effect of adoption order

“(1) An adoption order shall, unless otherwise thereby provided, confer the surname of the adopter on the
adopted child.

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(2) Where at any time after the making of an adoption order, the adopter or the adopted person or any other
person dies intestate, his property shall devolve in all respects as if the adopted person were the child of the
adopter born in lawful wedlock and were not the child of any other person.

(3) In any disposition of property made by an instrument which has effect after the date of an adoption order
—

(a) any reference, whether express or implied, to the child or children of the adopter shall, unless the contrary

intention appears, be construed as, or as including, a reference to the adopted person; and

(b) any reference, whether express or implied, to the child or children of the adopted person’s natural

parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not

including, a reference to the adopted person; and

(c) any reference, whether express or implied, to a person related to the adopted person in any degree shall,
unless the contrary intention appears, be construed as a reference to the person who would be related to him
in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other
person.

(4) Upon an adoption order being made, all rights, duties, obligations and liabilities of the parents or guardians

of the person to whom the order relates shall be extinguished, and all such rights, duties, obligations and
liabilities shall vest in and be exercisable by and enforceable against the adopter as if that person were a child
born to the adopter in lawful wedlock, and in respect of those matters that person shall stand to the adopter
exclusively in the position of a child born to the adopter in lawful wedlock.

(5) In any case where two spouses are the adopters, the spouses shall, in respect of the matters mentioned in

subsection (4) and for the purpose of the jurisdiction of any court to make any order as to the custody and
maintenance

of and right of access to children, stand to each other and to the adopted person in the same relation as they
would have stood if they had been the lawful father and mother of that person, and the adopted person shall
stand to them in the same relation as to a lawful father and mother”

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 Rescission of adoption order

(1) A parent of a minor for whose adoption an order has been made in terms of this Part, or the person who
was at the time of the making of the adoption order the legal guardian of the minor, or the adopter of such a
minor, or the Minister may apply to the court by which the adoption order was made for the rescission thereof
on one or more of the following grounds—

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(a) where the applicant is the parent of the minor, that he did not consent to the adoption and that the
adoption

order should not have been made without his consent;

(b) where the applicant is an adopter, that his adoption of the minor was induced by fraud, misrepresentation

or justus error, or that the minor was suffering from a serious physical defect or that the minor is a

mentally disordered or defective person in terms of the Mental Health Act [Chapter 15:06] and that the

physical defect or mental disorder or defect existed at the time of the making of the adoption order;

(c) that for reasons set out in the application the adoption is to the detriment of the minor:

Provided that—

(i) no application made on the ground specified in paragraph (a) may be made more than six months after

the date upon which the applicant became aware of the fact that an order for the adoption of his minor

child had been made, or more than five years after the date upon which that order was made;

(ii) no application made on a ground specified in paragraph (b) may be made more than six months after the

date upon which the applicant became aware of that ground;

(iii) no application made in terms of paragraph (c) may be made more than five years after the date upon
which the adoption order was made.

(2) Where the application is made by a parent of the minor, he shall give due notice of the application to the
adopter of the minor.

(3) Where the application is made by an adopter, he shall give notice of the application to the Minister and to
the parent or parents, or the person who was, prior to the adoption, the legal guardian of the adopted child, if
he or they can be found.

(4) Where the application is made by the Minister, he shall give notice to the adopter and to the parent or
parents, or the person who was, prior to the adoption, the legal guardian of the adopted child, if he or they
can be found.

(5) The court to which the application is made shall, after having satisfied itself that the applicant has complied

with subsection (2), (3) or (4), as the case may be, and after having afforded any person interested in the

application an opportunity to be heard, and after having considered any relevant evidence, whether oral or in
the

form of affidavit, which was tendered in support of or in opposition to the application, rescind or confirm the

adoption order:

Provided that—

(i) the court shall not rescind an adoption order on the application of a parent of the adopted child if it is

satisfied that the applicant is unfit to have the custody of the minor and that it is in the interests of the
40
minor that the adoption order be confirmed;

(ii) if the application is made on the ground that the minor was suffering from a serious physical defect or that
the minor is a mentally disordered or defective person, the court shall not rescind the adoption order

unless it is satisfied that the applicant was or, if a husband and wife jointly adopted the minor concerned, they
were both at the time of the making of the adoption order ignorant of the physical defect or mental disorder
or defect of the minor.

(6) On the rescission of an adoption order the adopted child shall for all purposes be restored to the position in
which he would have been if no adoption order had been made and the court shall notify the Registrar-
General of such rescission: Provided that the rescission shall not affect anything lawfully done while the
adoption order was in force.

GUARDIANSHIP, CUSTODY AND ACCESS

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 as 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 "

We have this form of guardianship that can only apply when married parents are
living together as a single family.

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.

Sole guardianship and custody were created by the Guardianship of Minors Act.

Section 4 of the Act- What can sole guardian do?

4 Guardianship and custody of minors

(1) The High Court or a judge thereof may—

(a) on the application of either parent of a minor in proceedings for divorce or judicial separation in which

an order for divorce or judicial separation is granted; or

(b) on the application of either parent of a minor whose parents are divorced or are living apart; if it is proved
that it would be in the interests of the minor to do so, grant to either parent the sole guardianship, which shall
include the power to consent to a marriage, or sole custody of the minor, or order that on the predecease(to
die b4 some1 else) of the parent named in the order, a person other than the survivor shall be the guardian of
the minor, to the exclusion of the survivor or otherwise.

(2) An order under subsection (1) granting the sole guardianship or custody of a minor whose parents are living
apart to a parent shall, if the parents become reconciled and live together again as husband and wife, lapse
with effect from the date on which the parents commence to live together again.

(3) Subject to any order of court—

(a) a parent to whom the sole guardianship or custody of a minor has been granted under subsection (1)

may, by testamentary disposition, appoint any person to be the sole guardian or to be vested with the

sole custody of the minor, as the case may be;

(b) a parent who has the sole custody of a minor in terms of subsection (1) of section five or by virtue of any

order made in terms of that section may, by testamentary disposition, appoint any person to be vested

with the sole custody of the minor;

(c) the father of a minor to whom the sole guardianship of the minor has not been granted under subsection

(1) shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor in any
other manner than to act jointly with the mother.

(4) Where the mother and a testamentary guardian of a minor act as joint guardians and they are unable to

agree on any question affecting the welfare of the minor, the wishes of the mother on that question shall
prevail:

Provided that the testamentary guardian, if he is of the opinion that the life, health or morals of the minor may

be affected to his detriment, may apply to the High Court for directions, and the court may make such order

regarding the matters in difference as it may think proper.

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(5) The High Court or a judge thereof may—

(a) where a parent has appointed a guardian or custodian as provided in paragraph (a) or (b) of subsection (3);
or

(b) where a guardian has been appointed to a minor by the father to act jointly with the mother;

upon the application of the other parent or of the guardian or mother, as the case may be, made after the
death of the testator, make such order in regard to the guardianship or custody of the minor as the court or
judge may consider to be in the best interests of the minor.

(6) A disposition made by a parent in terms of paragraph (a) or (b) of subsection (3) shall cease to be of any

effect if during his lifetime that parent ceases to be the sole guardian or, as the case may be, is no longer
vested

with the custody of the minor concerned.

(7) A wife may make any application referred to in this section, and any application to a court in connection
therewith, without the assistance of her husband.

What if parents are living together - see section 3 of Act.

3 Duty of father to consult mother on question of guardianship of minor

Where the parents of a minor—

(a) are living together lawfully as husband and wife; or

(b) are divorced or are living apart and the sole guardianship of the minor has not been granted to either of

them by order of the High Court or a judge;

the rights of guardianship of the father shall be exercised in consultation with the mother, and if a decision of
the father on any matter relating to guardianship is contrary to her wishes and in her opinion likely to affect
the life, health or morals of the minor to his detriment, the mother may apply to a judge in chambers, who
may make such order in the matter as he thinks proper.

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.
6 Enforcement of orders relating to access

(1) In this section—

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“access order” means an order of any court, including the High Court, which confers, expressly or impliedly,

rights of access to a minor upon a parent who does not have the custody of that minor;

“custodial parents” means—

(a) the parent of a minor who has the lawful custody of that minor; or

(b) a person who has been vested with the sole custody of a minor in terms of subsection (3) of

section four;

“non-custodial parent” means the parent of a minor who has had rights of access to that minor conferred

upon him by an access order

GUARDIANSHIP OF ILLEGITIMATE CHILDREN

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.

GUARDIANSHIP OF ILLEGITIMATE CHILDREN

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
(designate) is appointed over the child by the court. The High Court as Upper

44
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.

Section 61 of the Children's Act - Consent to adoption given by minor mother of

illegitimate child.
61 Matters with respect to which court to be satisfied

The court, before making an adoption order, shall be satisfied—

(a) where the consent of a parent is necessary in terms of this Act and has not been dispensed with, that

such consent is in the prescribed form and—

(i) is signed before a magistrate; and

(ii) states that the consent of the parent has been given to the adoption of the minor—

A. by the applicant or applicants for the adoption whose full names are known or have been

made known to the parent and which, together with their residential address, shall be

specified on the prescribed form; or

B. by an applicant or applicants approved and selected by the court in terms of this Act from

the register of names of persons kept by the Director in terms of subsection (1) of section

sixty-two; and

(iii) contains a certificate endorsed thereon by the magistrate that the parent understands the nature

and effect of the adoption order applied for and that, if granted, the parent will be permanently

deprived of his or her parental rights in respect of the minor; and

(b) where the consent of any person other than a parent is necessary in terms of this Act and has not been

dispensed with, that such person has consented to and understands the nature and effect of the adoption

order for which application is made; and

(c) that the order if made will be for the welfare of the minor, due consideration being for this purpose

given to the wishes of the minor, having regard to the age and understanding of the minor; and

(d) that the applicant has not received or agreed to receive, and that no person has made or given or agreed

to make or give to the applicant, any payment or other reward in consideration of the adoption, except

such as the court may sanction

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.
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CUSTODY AND ACCESS TO ILLEGITIMATE CHILDREN UNDER CUSTOMARY
LAW

As a general rule under customary law the position was that the natural father of an
illegitimate 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.

5 Interests of children paramount

In any case relating to the custody or guardianship of children, the interests of the children concerned shall be
the paramount consideration, irrespective of which law or principle is applied.

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.

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 ILLEGITIMATE CHILDREN

UNDER GENERAL LAW
Under Roman Dutch Law, the natural custodian of an illegitimate child is its natural
mother. 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 mother’s
custodianship is a danger to the welfare of the child and not merely that he will
make a better custodian parent.

As under customary law, the Customary Law and Local Courts Act is the paramount
consideration in the best interests of the minor child.

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

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 LEGITIMATE CHILDREN 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..

Application by mother to court - Section 3 of the Act - In practice never come

across such a case.

SOLE GUARDIANSHIP
Section 4 of the Act.

Sole guardianship is not something granted lightly .

( What are the circumstances that would justify sole guardianship )

TRANSFER OF GUARDIANSHIP

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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.

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

GUARDIANSHIP OF LEGITIMATE CHILDREN UNDER CUSTOMARY LAW

This applies to children born under a registered customary law union 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.

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.

CUSTODY OF LEGITIMATE CHILDREN UNDER GENERAL LAW

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.

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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 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)
DEBATE THIS ISSUE. Mother may also make an application for maintenance for
the minor to the children's court.

Father may also make an application to derive the mother of custody ( Section 5
( 3 ) ( b ) and ( c ) deals with access.

CUSTODY ON DIVORCE

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

Now the primary consideration is the best interests of the minor child.

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.

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
49
 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.

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.

EFFECT OF AN AWARD OF CUSTODY ORDER

If the mother is awarded custody, the father still retains the guardianship of the
child which he must exercise in consultation with the mother.

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.

CUSTODY OF LEGITIMATE CHILDREN UNDER CUSTOMARY LAW

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 .
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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.

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. ( Can we suggest any reasons )

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.

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.
51
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 )

MAINTENANCE
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) : 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 .

CHILDREN BORN INSIDE WEDLOCK

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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.

If marriage is in community of property duty to maintain children rests on husband

as administrator of the joint estate. If married in community of property mother
has a duty to contribute even single handily if husband has no means and she has
means.

Under RD law if parents separate , the one who has custody can apply to court to
have the other parent pay maintenance. In Zim as we have already dealt with if
parents separate , the mother should have sole custody until an order regulating
custody is made. This is in terms of the Guardianship of minors act. The mother can
approach the Children's court ( formerly the Juvenile court ) for an order that the
father pays maintenance during the time that the mother has custody. If the
children’s court orders that the father must be given custody after he makes an
application, then the court can also order the mother to pay maintenance for the
child i.e. to contribute

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.

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 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.

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.

Such sum may be a lump sum or periodic maintenance ( section 7 ( 1 ) and to follow
the guidelines in section 7 ( 4 ) . 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
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

54
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 .

Responsible person is defined in section 3 of the Act

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

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.

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 .

MAINTENANCE UNDER CUSTOMARY LAW

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

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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.

The decision in Musakwa was wrong.

It has now been overridden in respect of children born in wedlock by Section 11 ( 1 )

of the Matrimonial causes Act.

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 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.

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 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.

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 MAINTENANACE 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.

The variation in section 8 of the Maintenance act applies to all orders made by the
magistrate’s 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

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 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.

HOW ARE MAINTENANCE ORDERS ENFORCED ?

 All maintenance order 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

 Criminal offence to fail to pay maintenance - Section 23 - ( DISCUSS THE

ISSUE OF MAGISTRATES COURTS ISSUING WARRANTS OF ARREST
AGAINST DEFAULTERS )

 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

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 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.

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).

 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

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

MARRIAGE AND THE LAW

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

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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

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

 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.
Chn born under this union enjoy the same rights as children born under
registered customary law marriage. For purposes of customary law such chn
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 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 .

EFFECTS OF LAMA ON CUSTOMARY MARRIAGES

Before LAMA came into force the reqparppppauirements of a customary law union
were as follows:

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 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.

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 ? ( What do the students think )

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

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

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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
 absolutely incompetent - unable to marry anyone at all

 relatively incompetent - unable to marry each other- girls below 16 years and
boys below 18 years cannot marry at al except with the written consent of
the minister - Section 23 Marriage Act

 If persons who are below prescribed ages marry such marriage is void but
Minister may give retrospective validation ( section 23 Marriages Act )
provided the formalities of the marriage have been complied with.

 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.

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

62
 marriage .( 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 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 Marriages Act and section 7 of the Customary law and
local courts Act

PROHIBITED DEGREES OF MARRIAGE

( Discuss generally who is prohibited to marry under the different tribes and
cultures)

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

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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.

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 )

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 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 )

Marriage which is void by failure to comply with formalities is a putative one if

parties bona fide believed in validity. Chn 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 ( 2 )

Section 12 ( 1 ) Customary marriages Act - certificate of consent for Africans

marrying under Marriage Act . If no consent marriage invalid - Section 12 ( 2 ) .
Since LAMA women marrying without enabling certificates since certificates
premised on the basis that there is no bar to such marriage by reason of lack of
consent of the parents or guardian of the woman .

Now that when a woman turns 18 she no longer has a guardian and does not require
the consent of parent or guardian to marry. A woman under 18 would still require
enabling certificate.

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? ( Discuss with students what they think )

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.

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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.

CONSENT OF THE PARTIES

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

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.

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 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.

 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.

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
incurable 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

STATUTORY EXCEPTIONS

 Willful 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.

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* 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

 Section 21 of the Marriage Act

 Section 22 ( 1 )

 Section 22 ( 2 )

 Section 23

 Section 20

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

EXAMPLES OF VOID MARRIAGES

 Lack of compliance with prescribed formalities

 Same sex marriage including where there has been a sex change operation.

 Bigamy

 if one or both parties are below the minimum age and marriage is contracted
without Ministers written approval

 Mistake as to nature of ceremony or identity of party

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 Insanity or mental defect at the time of marriage

 Relationships within the prohibited degree of relationships

VOIDABLE MARRIAGES

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

Action can only be brought by an aggrieved party . If persons abide by marriage its
ratified .

EXAMPLES OF VOIDABLE MARRIAGES

 If one or both parties who are minors contract marriage without consent of
legal guardians or without consent of a judge

 Intimidation or coercision 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 .

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

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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 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 .

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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 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
71
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 Assurance 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
72
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 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 .

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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.

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 OMNIS VITAE

 Companionship

 love

 affection

 comfort

 mutual services and exclusive sexual intercourse

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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.

ADULTERY
Meant to compensate the injured party for comtumelia 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.

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 .

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 Society’s attitude towards adultery seems to have changed- Adultery no
longer being viewed as harshly as before.

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 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

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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

 Wife assumes husband's rank and dignities

 Wife assumes husband's domicile and cannot change domicile even when
parties are living apart

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 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.

 No marriage to someone else whilst marriage is still subsisting - subject to

Customary marriage Act

 Affinal relationships with each others relatives

ATTAINMENT OF MAJORITY

If minor marries , she becomes a major upon the marriage and this is unaffected by
death or divorce if parties still minors at time of death or divorce.

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.

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.

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 .

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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

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

 Reciprocal duty of maintenance ends at divorce under both customary and

common law - this is under common law - existing order ends
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 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

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 Primary 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 ) 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

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
80
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 permantly 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.

81
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

MATRIMONIAL PROPERTY RIGHTS OF SPOUSES

 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.

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 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.

 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.

OLD POSITION

Section 13 of the Customary marriages Act provided that :

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'' The solemnization of a marriage between Africans in terms of the Marriage Act
shall not affect the property of the spouses , which shall be held , may be disposed
of and unless disposed of by will , shall devolve according to African law and custom
''

That meant that the proprietary rights of two Africans married under the
Customary Marriages Act would always be determined by customary law.

Choice of law guidelines had no application since there was a controlling statute

Jenah vs. Nyemba 1986 (1) ZLR 138 : Gubbay J

Respondent an African married woman, unassisted by her husband , sued the

appellant for general damages for personal injury. In the High Court the objection
was taken in limine to the respondent's locus standi. The objection was dismissed .
On appeal:

Held: In the is1st instance, that status is to be decided according to general law
since the relief depends on general law.

Further: Regardless of whether Africans enter into a marriage in terms of the

Marriage Act , custom continues to apply to their proprietary rights. According to
custom, with few exceptions , the property acquired during the marriage becomes
the husband's property .

Held : Further : In customary law a wife may not sue for damages unless assisted by
her husband.

Further: By LAMA , full capacity is bestowed upon married African women .

Further : It is not necessary to aver majority in a declaration nor except in the case
of a woman married in community of property , free administration of property.

However some courts took a different approach:

Newham J:

The plaintiff and the defendant were Africans who had been married in accordance
with xtrian rites in terms of the marriage Act. Both were well educated , the
plaintiff being a well travelled and fairly prosperous businessman, the 1st defendant
being a nursing sister. Throughout their marriage, they adopted a westernised style
of life which could not be compared with that of Africans living according to
customary law. The plaintiff sued the 1st defendant for divorce on the ground of
83
her adultery with the 2nd defendant alternatively for an order of restitution on the
ground of her adultery. He further alleged in his declaration that the proprietary
rights of the parties fell to be dealt with in accordance with African custom in
terms of section 13 of the African marriages Act then cap 238 and claimed the
return of a car registered in 1st defendant's name and the payment to him of her
earnings. The court granted him an order of restitution and after dealing with the
custody of the child of the marriage proceeded to deal with the parties proprietary
rights.

Held: That the parties way of life and transactions between them were so far
removed from the incidents and the customary way of life of the African people
that it would be contrary to the justice of the case to apply African law and custom
to the solution of the property disputes between the parties.

Held: Further that it was possible for the court to apply the ordinary law of
Rhodesia to the parties proprietary rights without doing violence to the rule of
customary law whereby a wife on divorce is entitled to the fruits of her labour or to
the provisions of Section 13 of the African Marriages Act cap 238 - Holleman ,
Shona customary law , Child- History and extent of recognition of tribal law in
Rhodesia referred.

Further : The facts of the case did not disclose the existence of a tacit universal
partnership between the spouses.

Further : The 1st defendant was entitled to recover from the plaintiff the amounts
which she had contributed directly and through increased contributions to the
maintenance of the family towards the immovable property owned by the plaintiff
and was entitled to movable property held by the parties which had been purchased
from her earnings.

Seamble: Questions concerning the ownership of immovable property must be dealt

with in terms of the ordinary law of the land since the concept of private ownership
of immovable property is unknown to customary law

SECTION 13 HAD NO APPLICATION :

 Where the African parties were not married in accordance with the Marriage
Act but in accordance with any other law including some foreign law or the
Customary marriages Act

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 Two Zimbabweans married in terms of some foreign law- System applicable
would depend on whether parties contracted a monologaus foreign general
marriage or a foreign customary marriage.

 Africans marrying in terms of some general law foreign system capable of

entering into an ante nuptial contract - General law prima facie applied unless
there were compelling factors pointing towards application of customary law -
choice of law process.

 If Zimbabweans contracted a customary law foreign marriage , customary law

would generally apply unless there were some compelling factors - Choice of
law process

We have already stated that only two Africans can marry each other in terms of
the customary marriage. As a general rule customary law applies to the marriage but
the choice of law procedure can be invoked - Surrounding circumstances .

AFRICAN MARRIAGES AND IMMOVABLE PROPERTY

Both the Zim and Rhodesian courts took view that the concept of immovable
property was unknown under customary law - Jirira case so the immovable
consequences would be dealt with in terms of general law and this is both under
customary and general law.

Africans married under the Marriage Act would be competent to enter into an ante
nuptial contract to govern their movable property rights - marriage in community of
property .

It would appear that immovable property rights of spouses married under customary
law would be determined as if no marriage took place . Not competent to enter into
an ante nuptial contract since marriage potentially polygynous.

Section 13 Of The Customary Marriages Act Was Repealed By The

Administration Of Estates Amendment Act No 6 / 97 : Effect Of This
Amendment Is That A Woman Married Under The Marriage Act Can Own
Property In Her Own Right. It Is Also Important To Note That Section 13
Applied During The Subsistence Of The Marriage.

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Deputy Sheriff Harare vs. Mafukidze And Anor 1997 ( 2 ) ZLR 274

A husband and wife were married under the marriage act cap 5:11. A judgement was
obtained against the husband for a debt owed by him. Goods taken from the
matrimonial home under an attachment order and these goods were about to be sold
in execution. The wife sought to prevent the sale, claiming that the goods were her
own property. The creditor argued that the sale in execution should be allowed to
proceed 1stly on the grounds that the claim by the wife was bogus and 2ndly on the
basis that the goods could not be owned by the wife because such ownership was
excluded by section 13 of the customary marriages act cap 5: 07 . That section
provides that the marriage between Africans does not affect the property of the
spouses and that this property devolves according to customary law unless disposed
of by will.

Held: In terms of section 13 of the customary marriages act , customary law applies
to the proprietary rights of Africans married in terms of the marriages act. Under
customary law property acquired by the wife during the marriage becomes the
property of the husband subject to certain exceptions :

 Property disposed of by will

 Disposal of immovable property on divorce or death of the husband is

governed by general law as private ownership of immovable property is
unknown to customary law

 Umai property , i.e. livestock and its increases accruing to a woman as a result
of her daughter's marriage or pregnancy

 Mavoko property , that is property acquired by the woman through her

personal labour

 Damages awarded to her for injury to her person or reputation

Held: Further the controversy which exists as whether property acquired by a

married African woman by means of monies earned from her employment should have
been resolved by legislation but in the absence of such legislation, the court had
itself to pronounce on this issue.

Further: There is apparent conflict between Jena vs Nyemba and Mujawo vs

Chogugudza . In Mujawo, it was decided that the choice of law rules contained in
section 3 of the customary law and primary courts act superceded section 13 of the
customary marriages act. On the other hand , it was held in Jena that section 13
86
had not been implicitly repealed by LAMA as section 13 dealt with the substantive
law governing moveable property while the legal age of majority deals with age,
status, capacity which are matters of adjective law. This conflict could be resolved
by examining the underlying basis of the decisions in Bennet NO vs Master of the
High Court 1986 ( 1 ) , Chihohwa vs Mangwende 1987 ( 1 ) ZLR 228 ( S ) . It
is clear that LAMA was intended to effect fundamental change by freeing all women
over 18 years from the shackles of the lack of capacity . In the light of this, section
13 of the customary marriages act should not be taken as laying down the
substantive law on proprietary consequences of marriage. In stead , it should be
taken to allow for the application of the choice of law rule set out in section 3 of
the customary law application act.

That choice of law rule provided that customary law applies where the parties have
agreed that it will apply or where is seems to be just and proper that it should apply
in the light of the nature of the case and the surrounding circumstances. The rule
suggests that the common law of Zim is the basic law of the land and customary law
is only applicable by way of exception or that it is subordinate to the common law .
In the present case, the dispute was between the creditor and the married woman.
The parties had not agreed to the application of customary law. The surrounding
circumstances were such as to point to the conclusion that it would be proper for
general law to apply.

Held: Further : Although the issue in the present case was essentially concerned
with the proprietary consequences of her marriage and not her legal capacity, there
is a necessary link between capacity and ownership. LAMA granted to persons over
the age of majority the capacity to enter into contracts. It grants the same
capacity to both married and unmarried women. The granting of this capacity to
women is meaningless if all that it allows a married woman to do is acquire property
as agent for her husband. The capacity conferred upon married and unmarried
women must have been to acquire property in their own right.

Held: Although property acquired by a married African woman from monies earned
from her employment could be said to fall into the category of mavoko property in
the strict sense because in traditional society , it was unknown for a woman to be in
employment and to earn her own money in this way.

Further: Property acquired by a married African woman by means of monies earned

from employment or from other productive activities by her can now be owned by
her in her own right.

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Further: As the woman had established that the goods in question had been
purchased by her in her own name from monies earned from her employment, the
goods belonged to her , were not executable and should be returned to her.

CUSTOMARY LAW UNIONS : PROPRIETARY CONSENQUENCES

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 it’s 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. Case law will illustrate the
dilemma faced by the courts

Also Refer To The Enquiry Paper From The Law Development Commission

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

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 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?

GENERAL CONSENQUENCES OF MARRIAGE

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 shared 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

 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.

 Marital power highly prejudicial to women

MARRIAGE OUT OF COMMUNITY OF PROPERTY

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 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
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 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

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

 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

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* The Claim For Property Sharing Can Be Brought After The Divorce-Section 7
(1)

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 (What Do The Students Think? )

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 )

Court can also take into account any agreement 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 :

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- indeed our courts have held that property acquired after
separation is not subject to distribution

 Husband alone has brought up children of the marriage

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 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.

 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

 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.

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

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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.

 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 ( THE LEADING DIVORCE CASE )

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.

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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.

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 ''

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''

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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

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.

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

96
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.

EVICTION OF ONE SPOUSE PENDING DIVORCE

Maphosa vs. Maphosa 1990 ( 2 ) ZLR 37 SMITH J

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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.

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 HCH-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.

Look at the other exclusions- are they fair?

EXTEND OF APPLICATION OF THE MATRIMONIAL CAUSES ACT

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 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 .

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 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
99
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 towards 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.

WHICH WAY FORWARD?

The case law seems to favour a 50% to 50% sharing but this is not always the case.
For example in the Takafuma case , the High Court had given the wife 1/5 and it was
only in the Supreme Court that she got 50%.

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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 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 7the 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.

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 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.

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.

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.

DEFENCES TO MALICIOUS DESERTION

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 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

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

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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.

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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

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 the 7th of February 1988

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

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 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.

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.

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

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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:

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CONCEPT OF IRRETRIEVABLE BREAKDOWN

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.

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.

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GUIDELINE 1 : ONE YEAR SEPERATION

 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

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 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

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.

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