The civil partnership in terms of the new Marriages Act in Zimbabwe: a double-edged sword for all!

The year 2022, marked a new era in family law in Zimbabwe, at least one may argue. The President of Zimbabwe signed into law the new Marriages Act [Chapter. 5:15], which repealed the Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]. The new Act brought in various changes to how one perceived marriage in Zimbabwe. The purpose of this piece however shall in no way seek to address all the changes. Its focus shall be on the introduction and recognition of what the new Act terms, ‘Civil Partnership’ and its impact to the women and man in Zimbabwe.

In terms of the new Marriages Act [Chapter.5: 15], (hereinafter referred to as the ‘Marriages Act’), an avalanche of unorthodox relationships, arrangements, and situation-ships may now have dire consequences for all parties involved, be it voluntary or otherwise.

In terms of section 41 of the Marriages Act,

“(1) A relationship between a man and a woman who—

(a) are both over the age of eighteen years; and

(b) have lived together without legally being married to each other; and

(c) are not within the degrees of affinity or consanguinity as provided in

section 7; and

(d) having regard to all the circumstances of their relationship, have a

relationship as a couple living together on a genuine domestic basis;

shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship and, for this purpose, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall, with necessary changes, apply on the dissolution of any such relationship.”

The above is the direct extract of section 41 (1) of the Marriages Act. For clarity purposes and for those that may not understand, there are proprietary consequences that flow from the dissolution of such a ‘civil partnership’. But how does it affect people in general? For one to answer that question, one must first find out what kind of relationships are likely to fall within this category.

Firstly, a relationship between a man and a woman (meaning it has to be hetero-sexual), above the age of 18, who are living together without being married in terms of the Act (look at the recognized marriages in section 5), are not related in terms of section 7, and their relationship is one of a couple living together on a genuine basis, then that relationship is a civil partnership. The court in reaching a conclusion on whether it is a civil partnership, will have regard to section 41 (2) of the Marriages Act, which has objective factors which the court may consider. However, the court will not necessarily have to satisfy itself on every factor, but will exercise its discretion depending on the circumstances of the case before it.

When one goes on to read section 41(5) of the Marriages Act, this is where everything gets interesting, and it is submitted that the far reaching consequences become clear even for those that were not party to the arrangement. The Act clearly brings in a situation where one of the parties to the supposed civil partnership is legally married to someone else. Examples encompass sugar daddies, blessers, sugar mummies, cougars, small houses and what ever other names they are called nowadays. A man that is married to a woman and this man has a girlfriend that he is involved with, married or not, whom, he has purchased or rented accommodation for and habitually is with her on a domestic basis, who is also fully dependent on him for support, may potentially be in a civil partnership. Upon dissolution of this side relationship or upon dissolution of marriage, the side girlfriend, by virtue of a civil partnership, might have a claim on some assets or maintenance. It means even when a man dies, at the master of the High court’s office, the girlfriend may present herself with a claim on the estate, whether the married woman knew of her existence or not. The same applies even if the genders were exchanged.

One ought therefore to understand, that for women in Zimbabwe, married or not, this section is a double-edged sword that cuts both ways. It depends on what position you occupy. For a side-girlfriend, this section may potentially give you a claim. For a wife, you may potentially have to share assets with the girlfriend, who may very well be considered a spouse, or even worse, the estate to maintain her. Women are specifically mentioned because it goes without saying that Zimbabwe is largely a patriarchal society and more often than not, it is men that tend to have these kinds of situation-ships.

One may perhaps ask whether the present section is welcome or not. There is no answer to that. However, here is a thought for the people of Zimbabwe. Is it not at all appropriate for the laws of the country to protect all vulnerable people, despite what one may consider as moral decadence or not? Should the laws not openly protect these women who may be lied to by unscrupulous men that never truly reveal their marital status, and should the law not protect the children born of these situation-ships? Whatever one’s answer may be, ask yourself one last question. What if it were your daughter? What would your answer be then?

Clifford S Ncube is a Legal Practioner, Conveyancer and Notary Public, practising in Zimbabwe. These are his opinions and are not meant to be any legal advice for anyone. He writes to enlighten and to share his thoughts. His practice area includes Family law and should you find your self in need of legal advice, your may contact him and book a consultation, or book a consultation on this website.