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 where the 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. The stage was characterised by promiscuous sexual relationships including
intercourse between parents and children

This was followed by the consanguine marriage whose characteristics were as follows:
 Multiple sexual partners were designated by generation - all males and females in a
generation within a tribal group were husbands and wives of one another.
 Relationships were replicated through all generations
 Only direct ancestors and their progeny were excluded from sexual intercourse with one
another
 Descent was traced through the female because there was difficulty in identifying who the
father was.
Ultimately this form of family was overthrown and this marked the demise of matriarchal law
of inheritance. According to Engel’s, this marked the historical defeat of the female sex. Men
took command and women were reduced to serfdom and child bearers. Women were
monogamous but not men. Men became wealth and wanted to bequeath wealth to their
children. If there was female fidelity, then descent can in theory be traced through the male
line.
However these theories are debatable because we have matrilineal societies of descent e.g. some
Shonas, Zulus, Tongas and Lozis in Zambia but there is also no evidence that patriarchal values
are absent from such societies.
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.
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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 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. 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 the cohabitation family. In other jurisdictions couples
who are in gay and lesbian relationships are allowed to adopt children. The single parent family

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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

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

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

CHILDREN BORN OUT OF WEDLOCK

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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. 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.

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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

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.

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S 28 African Charter of People's and Human Rights and the recently adopted optional protocol.
S 18 (2) Family portrayed as the custodian of morals and traditional values recognised by the
family.
See also articles 27 - 29 - duties of the individual reflect aspects of African values according to
which individuals within the community have certain duties in addition to rights.
Article 17 of the Covenant on civil and political rights prohibits arbitrary or unlawful interference
with the family.
Individual - vs - collective rights = individual rights within the family regulate internal relations
within the family and provide the basis for the constitution of the family as a collective unit,
collective rights of the family regulate external relations of the family within the rest of the
community.

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.

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—

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(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
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.

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 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

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)
 The manner in which the seduction took place is also considered, with factors that incline 2
raise the awards being such as:
the defendant taking advantage of plaintiff’s intoxication (Botha vs. Peach), or
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 the defendant being much older than plaintiff (De Stadler vs. Cramer), or
the plaintiff 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 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.

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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

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
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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:
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 breach of promise to marry cases there is an underlying element of fraud and deceit.
It should 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 for breach of promise to marry 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
 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.

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 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
(defendant and plaintiff had worked pooling their resources together and built in something like
an estate, promise repudiated after about 2 or so years 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 plaintiff in Bull vs. Taylor was awarded both delictual as well
contractual damages

DEFENCES
General:
 Insanity - If one party is insane for example or discovers that the other person is insane.
 Fear - If you do not marry me, I will kill your whole family or I will kill myself.
 Mistake
 Drunkenness: 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 to justa causa for repudiating the promise to 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
Page 13 of 72
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
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.”

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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) 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 question 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 with 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
to 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 to 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). 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.

Page 15 of 72
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
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.

Page 16 of 72
 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 defendant had led
evidence that “chances of his being sterile 2 years ago are very likely”. The court found
this evidence to be unreliable for various reasons and thus found that he had failed to 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 balance of probabilities he would still have
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. 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 tracher’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. Ex-husband must admit to the post-divorce sexual intercourse if presumption of
paternity should apply to him.
Page 17 of 72
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.

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

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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 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

Page 19 of 72
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:
 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

Page 20 of 72
  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?
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.

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;

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  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

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
CHILDREN WHO HAVE ONE ZIMBABWEAN PARENT AND ONE FOREIGN
PARENT:

Page 22 of 72
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.

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

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subsequently marry, the children become legitimate (legitimatio per subsequens matrimonium) .
The legitimation is automatic and any incapacity the children suffered fall away.
Pre marital children can be legitimated by adoption.
ADULTERINE CHILDREN
The word speaks for itself. An adulterine child is one born out of adulterous sexual intercourse i.e.
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.

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

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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 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

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“(1) An adoption order shall, unless otherwise thereby provided, confer the surname of the adopter
on the adopted child.
(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—
(a) where the applicant is the parent of the minor, that he did not consent to the adoption and that
the adoption

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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
minor that the adoption order be confirmed;

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(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 .
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

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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.
(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.

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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—
“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

Page 30 of 72
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 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.
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.

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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
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.

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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
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.
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.

Page 33 of 72
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
 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.
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

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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
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.
 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.

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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

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.

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Section 6 (3 ) deals with who is liable under customary law for maintenance and the parents are
primarily responsible for this.
ARREAR MAINTENANCE
In the Musakwa case the Supreme court came to the conclusion that arrear maintenance was not
claimable if there was no prior maintenance order in existence. It is submitted that the SC ignored
section 6 ( 6)(C ) which allows the court to make an award of arrear maintenance. If there is in
existence a maintenance order it can be enforced by any of the ways set out in the act.
RD common law recognised claims for arrear maintenance see Woodhead case and also P vs. C.
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.
 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 .

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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
 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
 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.

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 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
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

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 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 requirements of a customary law union were as follows:
 Intending spouses must agree or consent to marry each other
 the guardian of the woman must consent to the marriage
 the intending husband and the guardian of the woman must reach an agreement as to lobola
payments
 there must be a formal hand over of the woman by her guardian .
Because of LAMA , a woman reaches the age of majority at 18 years and since she will be
considered as having no guardian , she has unrestricted freedom to marry. An agreement as to
roora is no longer a legal requirement under customary law for a woman who is 18 years old.

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
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

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 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 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 )
 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 )
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After the declaration by marriage officer.
In the Australian case of Quick Vs. Quick : When husband began putting ring on finger , woman
flung it away and said to man I WILL NOT MARRY YOU and ran off. The officer had not
pronounced them man and wife but they had both said I WILL to the question if they would take
each other as husband and wife.
Court held that they were married since under common law all what is required is mutual
acceptance before a marriage officer that they would take each other as husband and wife .
Marriage tie created when woman takes man as lawfully wedded wife the declaration by the
marriage officer being merely to confirm the state of affairs.
FORMALITIES UNDER THE CUSTOMARY MARRIAGES ACT
 Marriage solemnised only by a Customary marriage officer - Section 2 Interpretation of
marriage officer
 Two witnesses who are majors are required.
 No requirement to publish notice of intention to marry or get marriage licence but
regulations by Ministry of Justice require parties to publish notice of intention to marry.
Notice to be displayed for four weeks. Parties may obtain a special licence to be issued
only in exceptional circumstances.
 Regulations do not have force of law because they have not been promulgated but parties
intending to marry must comply with them.
 Section 7 provides the circumstances under which marriage officer can marry a couple.
Section 7 ( 1 ) (a ) on marriage consideration ( lobola ) and section 7 ( 1) ( c ) on consent
of the guardian have been done away with by implication due to LAMA if woman is over
18 years.
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.
 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.

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 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.
* 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
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 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
 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 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
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that the marriage is putative in order to do this. This provision applied in the present case . If this
were not the case, it would work an injustice and hardship on a party such that the respondent who
had laboured during the marriage and had contributed by the accumulation of the matrimonial
property under the impression that the marriage was valid.
It would unjustly enrich a dishonest party such as the appellant simply because the property in
question is either registered in his name or under his control. Such a position would be
unconscionable and the legislature by using the expression NULLITY OF MARRIAGE, in section
7 ( 1 ) of the Matrimonial causes Act must have envisioned that a situation such as the present
would be covered . Such actions are very common in African society because of the failure by
many to realise that once they contract a CHURCH marriage, their marriage becomes
monogamous.
Katiyo vs. Standard Chartered Zimbabwe Pension Fund 1994 ( 1 ) ZLR 225
Deceased was married to the plaintiff in an UCLU. The deceased had been a member of a pension
scheme operated by his employer . When he died , the plaintiff was advised by the defendant that
she should not be paid spouse's annuity from the pension fund unless she produced a marriage
certificate . She was unable to do so. The trustees of the fund decided that she was not a spouse as
envisaged in the rules of the pension fund and that she was not therefore not entitled to a spouse's
annuity. The plaintiff applied to court for an order directing the defendant to register her as a
spouse and pay her a spouse's annuity .
Held: The refusal by the Trustees of the fund not to treat the plaintiff as a spouse for the purposes
of the pension fund did not violate section 23 of the constitution . Section 3 of the African
Marriages Act lays down that the UCLU is invalid except for purposes of status , guardianship and
rights of succession of children. The statutory provisions do not offend section 23 of the
constitution. Section 23 ( 3 ) allows for differential treatment of persons by law in matters of
marriage and other matters of personal law . The ruling by the Trustees not to accept the UCLU as
a valid marriage under the pension scheme was largely influenced by section 3 of the then African
Marriages Act and did not therefore violate section 23 of the constitution.
Further: In the absence of unreasonable conduct or mala fide on the part of the Trustees of the
pension fund, the court is not entitled to interfere with the discretionary decision reached by the
defendant that the plaintiff was not a spouse for the purposes of the pension fund. The Trustees
decision had not been taken on an unreasonable basis.
Further: The trustees of the pension fund had correctly concluded that the plaintiff was not a
spouse as envisaged in the rules of the fund. In terms of section 3 of the African Marriages Act an
UCLU is not a valid marriage except for certain purposes . These exceptions relate only to the
children of such union. There is no provision in the Act or any other statute laying down that such
a union is to be recognised as valid for the purposes of payment of pension funds and that
customary law wife must be treated as a spouse for purposes of payment of annuity under the
scheme. Although the present position is unfair, the position can only be changed by the
legislature and could not usurp the law making function of the legislature.

Mandimika vs. Mandimika And Another 1997 ( 2 ) ZLR 352

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

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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 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 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

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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 .
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

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 comfort
 mutual services and exclusive sexual intercourse
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 .
 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

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by Goldin and Gelfand in their book African law and custom in Zimbabwe in their assertion at 216
that a husband cannot sue for adultery damages if the marriage is unsolemnised.
The African and Tribal Courts Act was replaced by the customary law and primary courts Act
6/81. Subsequently the customary law and primary courts Act was replaced by the customary law
and local courts Act 2/90. Correctly interpreted both the customary law and primary courts Act
and the Customary Law and local Courts Act maintained the right of the husband in an
unsolemnised customary law union to sue in customary law for adultery damages. One important
consideration in reaching the conclusion is that if a husband in an unsolemnised or UCLU is
primarily responsible for the maintenance of his wife, customary law courts must recognise the
correlative right of the husband to claim damages for adultery.

ADULTERY UNDER CUSTOMARY LAW MARRIAGE

Mukono vs. Gwenzi 1991 ( 1 ) ZLR 119
A woman who was over the age of 18 married a man in terms of the customary marriages act. The
wife had successfully claimed damages against a woman who had committed adultery with her
husband. On appeal :
Held: A customary marriage under the customary marriages Act is potentially polygamous
whereas a marriage under the Marriage Act is monogamous. The two types of marriage are
different and confer different rights and obligations upon parties to the marriage. The parties can
only enjoy the rights and obligations upon the parties to the marriage . The parties can only enjoy
under the type of marriage they have chosen . When a woman opts to enter into a customary law
marriage, she must be taken to have been fully aware of the rights available to her under that type
of marriage.
Held: Under customary law a married woman is not entitled to claim damages against a woman
who committed adultery with her husband. Under customary law , a married woman seldom has a
right of action in her own name. The husband of a married woman is her guardian and he would
normally bring the action but obviously not in a case where he committed adultery with another
woman. Only the adulterous woman's husband or father can sue the erring husband.
Further: Although LAMA had given women over the age of 18 years the legal capacity to sue in
their own names, it did not give them causes of action which did not exist previously. If the
legislature had intended to do away completely with the differences under customary law
marriages and general law marriages and to eliminate all disabilities and discrimination arising
from customary law, it would have provided for this in LAMA . Therefore despite LAMA, a
woman over 18 who is married in a customary law marriage cannot sue for damages the woman
who has committed adultery with her husband.
Case also highlights the issue of certificates of blessings given by especially the Catholic church
which are not marriage certificates which many people believe to be.

THE MARRIED STATUS

 Wife assumes husband's rank and dignities
 Wife assumes husband's domicile and cannot change domicile even when parties are living
apart
 Wife may assume husband's surname but is not obliged to do so- a hot issue in Zim where
RGs office is forcing women to assume surname of husband.

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

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 .
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
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 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
 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 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

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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.
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

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 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 :
'' 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 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.

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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
 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 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
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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.
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
 The courts have used both the universal partnership concept and unjust enrichment

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 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

 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.

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 Some wives stay at home and take care of the family. This role is then considered
unimportant in the out of community realm because their domestic contribution is not
taken into account. There is therefore no equity there.

CUSTOMARY LAW PROPRIETARY CONSEQUENCES OF MARRIAGE

 Women treated as perpetual minors - no contractual or proprietary capacity

 Dominance of men - marital power
 Property acquired automatically vested in the husband unless it fell into specific
categories : See Jenah vs Nyemba case
 The excluded property is mombe youmai/ innkomo yohlanga and mavoko/impahla
zezandla - this is property acquired by the woman through her skills e. g pottery,
knitting ,midwife or herbalist
 African woman can also own both movable and immovable property. Colonialists took
view that the ownership of immovable property was unknown under customary law so
general law applied- See Matambo vs Matambo , Jirira vs Jirira
 Under customary law all meaningful property owned and controlled by husband. Woman
perceived as an object who has to work or the husband and at the end of the day just leave
with her mavoko property or mombe yeumai
 Urban woman rarely has mombe yeumai or mavoko and she walks away empty handed-
Customary law does not recognise her domestic contribution

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

RELATIONSHIP BETWEEN DIVISION OF ASSETS AND MAINTENANCE

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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
 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

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 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
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.
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
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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''
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

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purely discretionary remedies but that the rights as between spouses are personal inter se and do
not affect third parties regardless of whether the latter are aware of the dispute.
Held: A wife cannot prevent her husband from disposing of assets unless he is thereby attempting
to defeat her just rights and that the 2nd respondent had not shown any equitable consideration
which warranted intervention on her behalf by the court.
Held: Further that a wife's right of occupation due to her status as a wife is essentially a matter of
equity and the courts will intervene where for example the husband disposes of the home as a
policy of harassment arising out of divorce proceedings.
Held: However even if husband is the defaulting party , he may eject the wife from the
matrimonial home provided he offers her suitable alternative accommodation.
Held: The existence of the spoliation order relating as it did only to possession of the house , did
not preclude transfer of the property to appellant as they were not party to the spoliation
proceedings was nor bar to a claim by them for 2nd respondent's abetment.

Manga vs. Manga 1991 (2) ZLR 251 ( SC )

When one of two joint possessors of a thing illegally takes exclusive possession of that thing, a
mandament van spolie will lie at the instance of the other possessor in the same way as if the
applicant had enjoyed exclusive possession.
The respondent who was married to the appellant, left the matrimonial home taking with him
certain items which had up to then been in possession of both spouses. The appellant delayed for
some five months in bringing her application in the court a quo although the commencement of the
action was preceded by several demands for restoration of the claimed items.
Held: Appellant was entitled to a spoliation order . The appellant's delay in instituting proceedings
did not amount to acquiescence in the dispossession.

EVICTION OF ONE SPOUSE PENDING DIVORCE

Maphosa vs. Maphosa 1990 ( 2 ) ZLR 37 SMITH J
Where the respondent sought to exclude the applicant from the matrimonial home without offering
her alternative accommodation or the means to acquire such and where there was no evidence that
it was impossible for the parties to live together in the same house , the court affirmed the wife's
right to remain in the matrimonial home.
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.

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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

 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 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

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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.

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
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 Innocent spouse could forgive guilty spouse and if so could not at a latter stage institute an
action for divorce based on the forgiven adultery. Condonation could not take place if the
guilty spouse refused to be forgiven. Also where sexual intercourse took place after the
adultery this was taken as condonation.
 Connivance - anticipatory consent, express or implied to future misconduct - volenti non
fit injuria - promoting, encouraging or acquiescing in initiation or continuance of adultery
by one spouse.
 Court will also not grant a divorce if parties connive to lay false facts before the court by
either lying that adultery took place or suppressing facts on adultery.

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

 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

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

 Sentenced to imprisonment for 15 years of more

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

ANALYSIS OF THE OLD DIVORCE LAW

 Based squarely on the guilt principle and sought to punish the guilty party
 More often than note, the marriage would have broken down inevitably due to conduct of
both parties but the innocent spouse could keep the guilty spouse bound to a marriage
which had broken down.
OLD CUSTOMARY LAW OF DIVORCE
CHEWA vs. BVUTA 1928 SR 98
A native man and woman of the Mashona tribe were married and the marriage duly registered.
There after it became apparent that the husband was impotent and the wife in accordance with
native custom had intercourse with the husband 's brother and gave birth to a child by him. On the
question as to whether the wife was entitled to divorce by reason of the husband's sterility.
Held: It will be contrary to natural justice and morality to refuse her relief.
Shoriwa vs. Risi And Mubayiwa 1943-44 NAC 27
Maltreatment by and impotence of a husband each constitutes a valid and separate ground for
divorce at native law. Defendant admitted assaulting his wife more than once.
Jokonya Vs. Daina And Machingura 1943-44 NAC 44

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Husband had paid 10 pounds and one beast lobolo for wife and had lived with wife for many years
, the marriage being childless. Wife sued for divorce on the grounds of husband's desertion and
cruelty. Husband had not supported wife for more than six years.
Held: A deduction of 5 pounds and one beast from the lobolo returnable was reasonable in view of
husband's failure to contribute to the support of wife.
Seamble: A wife in a native customary marriage is entitled to a divorce on the ground of her
husband's prolonged desertion or cruelty.

Kamenya vs. Jessie And Mbida 1943 4 NAC 4

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

THE NEW DIVORCE LAW

The Matrimonial causes Act became operational on 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 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.

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Boswinkel vs. Boswinkel 1995 ( 2 ) ZLR 58 Chatikobo J
A court has jurisdiction in a divorce action if the person suing for divorce is domiciled within the
area of jurisdiction of the court. The person bringing the action must aver and prove that he/she is
domiciled within the area of jurisdiction of the court. Jurisdiction is not a matter which the
litigants are free to establish by submission. It is the court which must determine the existence or
otherwise of jurisdiction. If it appears to the court from the evidence led that the question of
domicile is in doubt, the court would mero motu raise the question of domicile in order to satisfy
itself that the basis of jurisdiction relied upon has been established.
The plaintiff came from the Netherlands with his wife with the intention of settling in Zim and
making it his home. He had sold his properties in the Netherlands and had used that money to buy
properties in Zim. He had abandoned his domicile of origin. In terms of Section 3 ( 3 ) of the
Immigration Act, Cap 4: 02, a person must be lawfully originally resident in Zim for a continuous
period of two years before he is able to acquire a domicile of choice.

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

GROUNDS FOR DIVORCE UNDER THE NEW DIVORCE LAW

There are now only two recognised grounds for divorce ( Section 4 ) Matrimonial causes Act .
Also important to note that only the court can grant a decree of divorce but parties sometimes
agree that the marriage has broken down irretrievably .
Does the court have a discretion because of the word '' may '' ? In SA court held that there was no
residual discretion on the court to refuse a divorce once breakdown has been established:

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

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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.

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
 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
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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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