Although there were peculiar customs here and there, the basic laws of marriage were common among Zimbabweans. Essentially, the intending spouses had to agree to get married; the father/ guardian of the woman had to consent to the marriage; roora/lobola had to be paid by the intending husband; after the marriage ceremony, the woman was delivered to her husband.
No registration of the marriage was required because writing was not part of Zimbabwean life. After colonial conquest, with effect from June 10, 1891, Cecil John Rhodes and company imported Roman-Dutch law into the country and imposed it as the common law.
Our own common law was relegated and renamed customary law. With regards to marriage, two systems were allowed to co-exist, being the monogamous type of marriage requiring registration, and the potentially polygamous type of marriage between Africans, which, until January 1, 1951, did not require registration.
From January 2, 1951 onwards the customary law marriage was no longer recognized unless registered. This is provided for under section 3(1) of the Customary Marriages Act, Chapter 5:07. However, the legislature recognised the folly of the failure to recognise an unregistered customary law marriage in toto for in section 3(5) of the Customary Marriages Act, Chapter 5:07 it recognizes the marriage for the purpose of the status, guardianship, custody and succession rights of children born in this marriage.
The above recognition, though, is wholly inadequate because the children remain illegitimate under general law. The father of the child born in this marriage cannot acquire a birth certificate or passport for the child without the consent of the mother, and neither can a mother register the child in the father's name without the consent of the father.
This absurdity comes out clearly in the 2003 case of Katedza v Chunga & Another 2003 (1) ZLR at page 470, wherein the mother of children born in the unregistered customary law marriage was able to change the children's surname from that of the father to her own, and was allowed by the High Court to acquire new birth certificates for the children without the father's consent.
The judge ruled that whilst section 3(5) of Customary Marriages Act, Chapter 5:07 says that the children born out of this marriage are legitimate, this is for customary law purposes only, not for general law purposes. Consequently, the High Court ruled that children born in an unregistered customary law marriage are illegitimate for general law purposes and all rights over the child are with the mother.
"Despite the progressive legislative provisions enacted since independence and positive judicial activism, the legal disabilities suffered by women who opt to marry under the unregistered customary law marriage remain in the various spheres of our law.
As an example, the Matrimonial Causes Act [Chapter 5:13] is not applicable in relation to such unregistered customary law marriages as such women would have to find some cause of action under general law if they are to benefit from matrimonial estate outside 'maoko property' at the dissolution of such a union".
So why favour the second wife with a Chapter 5:11 marriage? If entitlement is on the basis that in reality there is a widow, in the sense of a putative marriage having existed, then in both situations the second widow is entitled to inherit. It would appear that the second widow with Chapter 5:11 marriage is allowed to inherit because there is a putative marriage.
Equally, once the Act has recognized an unregistered customary law marriage as a marriage, then the same reasoning should apply and the widow with the unregistered customary law marriage should benefit on the basis that there was a putative marriage.
Thus, while most of the provisions of Section 68 to 68 k of the Administration of Estates Act, Chapter 6:01are progressive, their major shortcomings are two, being firstly confining their application to intestate succession, and secondly discriminating against the widow in a second marriage if the first marriage is Chapter 5:11 marriage.
As matters stand the African woman in an unregistered customary law marriage suffers the most, particularly at divorce as she cannot approach the Magistrates' Court or the High Court for divorce and property sharing.
Secondly, if she was the second wife to a man married under Chapter 5:11 she does not inherit. Thirdly, if her husband had made a Will in a prior marriage, and he does not revoke the Will upon remarrying, the first Will remains valid notwithstanding the remarriage.
The issue of whether an unregistered customary law marriage is or is not a marriage has vexed the judiciary for a long time because of the failure of the executive and legislature to harmonise Zimbabwean marriage laws.
There has been an ad hoc approach to this complex problem brought about by two legal systems which talk to conflicting values. Justice Rita Makarau had this to say way back on August 7, 2002 when she delivered judgment in the case of Marange v Chiroodza reported in the 2002 Zimbabwe Law Report at page 171:
"The issue surrounding the matrimonial property regime attaching to unregistered customary unions arises from the fact that our general law has been most ambivalent in the way that it treats unregistered customary unions.
"For some purposes, the parties to the union are regarded as married persons and are accorded the rights and obligations that the law grants to or imposes on married persons. For others, the parties to such unions are regarded as unmarried. By design or through an oversight, the law has not made any express provision for the distribution of the property of persons in such unions when their unions terminate other than through the death of one of the parties.
"The problem of how to treat the distribution of the property of persons in unregistered customary unions when such unions dissolve has dogged these courts for the long time. Calls to have the legislature step in and remedy what is clearly an iniquitous position have fallen on deaf ears.
"Parliament has dragged its feet to redress this peculiar problem that afflicts and affects the greater majority of the African population of this country. The burden of creating a just and equitable environment in property distribution for the African woman married according to tradition and custom has been left to the courts.
"The courts have in my view responded with commendable innovation amid self-introspection to fashion a choice of remedies where one has been denied by statute . . ."
"However, in an effort to fashion out remedies that do not have the effect of distorting existing legal concepts, the responses of the courts have tended to be inconsistent and confusing. In my view, the unregistered customary union is an institution that will be with us for a long time. It is an institution sustained by tradition and custom, graced by social acceptance, and favoured by the majority of the people in the country . . .
"Since it is an institution that the law has not, and in my view cannot, openly outlaw or condemn, parties to it will expect the law to have the scope and capacity to determine the distribution of the estate acquired during the subsistence of the union.
This is so because in the eyes of the community where such unions are prevalent, there is no difference between the sanctity and the respect accorded to a registered and unregistered union. Thus, the law becomes incomprehensible in the eyes of society by failing to provide the same remedy to the same people, married under the same traditions but differentiated simply by the registration of their unions.
"Further, having given limited recognition to the union during its subsistence, it makes a complete ass of the law for it to suddenly turn blind and fail to recognize the parties when the union terminates on the pretext that the law has no express provision on how to distribute the estate of such person. In my view, in such an instance when it fails to provide the remedy to correct an obvious injustice, the law then removes itself from the people and fails to be a reflection of the mores and values of the society it seeks to serve. It risks being ignored as alien".
The judiciary's concern over the unsatisfactory state of our marriage laws can be traced back to Fieldsend CJ, when in 1981 he called for legislative intervention to harmonize Zimbabwean marriage laws. Justices Chatikobo, Chinhengo, Garwe and Cheda in various judgments have also pointedly raised the problems besetting our marriage laws, particularly with regards to unregistered customary law marriages. In the case of Mtuda v Ndudzo 2000(1) ZLR 710, Justice Garwe had this to say about unregistered customary law marriages:
"There has been legislative - even judicial - hesitancy to clarify the legal status of claims arising out of such unions. Decisions emanating from this court and the Supreme Court have not made the situation any clearer. As Chatikobo J noted in Matibiri v Kumire 2000 (1) ZLR 492 (H), different judges have, sadly, approached the matter in different ways. My approach in this case will no doubt add to the confusion. What is clear, however, is that most judges in this jurisdiction are agreed that justice needs to be achieved in these cases and that, in the absence of clear legislative provisions, this might be achieved by judicial innovation."
Zimbabwe's family law will continue to be dogged by conflict as long as the executive and the legislature do not take corrective action by harmonizing our marriage laws. Justice Chinhengo had this to say in the case of Gwatidzo v Masukusa 2000 (2) ZLR 410 where the junior wife in a polygamous marriage "upgraded" her marriage to a chapter 5:11 marriage, and was now suing the senior wife for adultery damages:
"The problem of the conflict between customary law and general law, as I see it, has dogged us for so long, because of the legislature's reluctance to change the law so as to secure equality for all our people irrespective of the nature of the marriage contracted by them."
Whilst registering marriages has clear advantages, it cannot be the reason for abandoning African women in unregistered customary law marriages to fate and chance as to how a particular judge will interpret the current perplexing marriage systems and laws.
The fact of the matter is that customary law as it was named on June 10, 1891 has always been and remains part of our law. Unregistered customary law marriages are part of our customary law and they are valid.
In fact the current confusing and contradictory legislative provisions on the status of an unregistered customary law marriage seem to fall foul of the equality and non-discrimination provision, that is section 56 of the Constitution, in that this type of marriage is being discriminated against on the basis of culture and custom. The onus to end the suffering of women in unregistered customary law marriages rests squarely on the executive and the legislature. The time to act is long overdue.
Godwills Masimirembwa, Zimbabwe Institute of Legal Studies Lecturer.