With Fidelicy Nyamukondiwa
Marry Mubaiwa, the enstranged wife of Vice President Chiwenga recently made headlines after being arrested inter alia for allegations of fraudulently attempting to upgrade their Unregistered Customary Law Union (UCLU) into a Civil Marriage. This article explores the types of marriages recognised in Zimbabwe.
Unregistered Customary Law Union
The majority of marriages in Zimbabwe are UCLUs. There is no marriage certificate for an UCLU because it is legally not a marriage. The law however recognises it for purposes such as maintenance and custody of children. It comes into being through a roora/lobola ceremony. In Hosho v Hasisi HH 491/15, the High Court reemphasized that the customary meaning accorded to this type of marriage revolves on the payment of lobola.
Parties to an UCLU can agree to upgrade it into a Customary or Civil Marriage. Mary Mubaiwa is alleged to have attempted to register their UCLU into a Civil Marriage purporting that the VP had consented to the upgrade when in actual fact he had not. The way UCLU can be dissolved varies with custom. In most Shona customs it involves payment of a divorce token known as ‘gupuro’. It is however permissible to have an UCLU dissolved by a court especially where disputes concerning the sharing of matrimonial property arises.
A Customary Marriage is solemnised in terms of the Customary Marriages Act [Chapter 5:07] and like an UCLU it can be polygamous. It is solemnised by a customary marriage officer who can either be a magistrate or an official/chief appointed as a marriage officer by the Justice Minister. Proof of its existence is a marriage certificate. A Customary Marriage can be converted into a Civil Marriage but the latter cannot be converted into the former. A Customary Marriage is dissolved by an order of a magistrate.
Civil Marriages used to be solemnised in terms of a statute then known as Marriage Act [Chapter 37]. It is as a result of the foregoing that some people still call them “Chapter 37”. They are now solemnised in terms of the Marriage Act [Chapter 5:11] and are monogamous. A magistrate or other legally designated marriage officer such as a priest or a pastor solemnises Civil Marriages. It cannot be ‘downgraded’ into an UCLU. A Civil Marriage can only be dissolved by an order of a High Court judge.
Cohabitation is when a man and a woman stay together as husband and wife without payment of lobola nor registration of the union. This is commonly referred to as small houses, kubika/kuchaya mapoto or ukuhlalisana. Clause 40 of the Marriage Bill, 2019 which stirred a public outcry mid last year sought to legalise cohabitation.
Civil Marriages and Customary Marriages are the legally recognized marriages in Zimbabwe. UCLUs are technically not marriages but are legally recognized for other purposes. The gazetted Marriage Bill, 2019 if passed into law will harmonise Zimbabwe’s marriage laws and align them to the Constitution.
Fiat Justitia Ruat Caelum!
Nyamukondiwa Fidelicy writes in his personal capacity. He holds a Diploma in Law and is a former Public Prosecutor at Masvingo Magistrates Court. He is a LLB (HONS) student at Herbert Chitepo Law School. Contactable on 0785827154 /email@example.com.