The Sunday Mail
The landmark High Court ruling which declared that women in unregistered customary marriages will now be awarded part of property accumulated during the subsistence of such unions was always going to divide public opinion.
Justice Alfas Chitakunye made the ruling after Ms Melody Kurebgaseka sought relief when she was denied part of the property from her unregistered customary union of 14 years to Mr Tinei Mautsa.
Justice Chitakunye ruled that the law governing such unions was unjust and awarded Ms Kurebgaseka part of the property accumulated during the marriage.
In Zimbabwe, the law does not recognise an unregistered union as a marriage. Instead, such a union is often treated as co-habitating and upon the dissolution of such a union, the woman leaves with only a few kitchen utensils, clothing and linen.
Apart from the divergent views, the ruling was also a pointer regarding the compatibility of human rights and democracy with customary law.
Although the majority of the people interviewed, among them academics, civil society and ordinary people generally agreed that the ruling was a welcome development, a number of important points, were also raised.
One of the issues raised was the need for re-aligning customary law so that it gets in tandem with human rights and democracy.
Calls were made for legislators to propose laws that take into account some cultural perspectives.
Mr Walter Vengesai, the acting Padare/Enkundleni director, welcomed the High Court ruling, saying: “Women contribute to the accumulation of family in many ways. However, they are often forced to leave the home with virtually nothing in the event of a divorce.
“Women always contribute financially in a number of ways. Some sell vegetables, second-hand clothes and other things. It is just that they are not given pay slips nor that the money they earn goes through the bank. As Zimbabweans, we should reconsider our views towards employment.”
Television host, marriage counsellor and The Sunday Mail columnist Dr Rebecca Chisamba said the ruling was not, in a sense, a new development.
“This ruling is fair but is not very new. In a proper marriage, couples should jointly own whatever they have. Once we start to say this house belongs to the wife or the husband, problems will definitely arise in the future. Once married, a couple becomes a single entity,” Dr Chisamba said.
Dr Chisamba said the Matrimonial Causes Act (Chapter 5:13) also has a customary element to it.
“Before signing the marriage certificates, there are other customary practices such as paying lobola. Like I said earlier, this ruling is not entirely new,” Dr Chisamba said.
A blogger who identified himself as Mukundi said men were often “cruel” when it came to sharing property during divorce proceedings.
“A man lives with a woman for, say, 14 years, with the wife doing all the duties required of her. The woman might actually be contributing to the acquisition of the property but in the end the man decides to dump her and offer only spoons and forks. This is ridiculous and grossly unfair to say the least,” wrote Mukundi.
He said Ms Kurebgaseka should have been given half of the estate since she also contributed, in one way or the other, to accumulation of the properties.
“She was doing all the dirty work like washing and cleaning. This made it easy for the husband to go out and acquire the properties. In a way she contributed immensely to the acquisition of the properties and, therefore, rightly deserved an equal share,” added Mukundi.
Mr Gift Nzombe, a street vendor did not, however, agree with Mr Mukundi.
“Most women do not want to contribute anything to the family coffers. They want to be spoon-fed like children. They will, however, want to claim property as if they contributed anything towards its acquisition.
‘‘This is, in my view, grossly unfair,” Mr Nzombe said.
Reverend Emmerson Fundira of Jehovah Sharma Ministries said couples should take Biblical advice in matters to do with the family.
“If we take the Biblical advice regarding family matters, cases in which couples fight for property will definitely decrease.
‘‘These days, couples can, at a whim, approach the courts seeking a divorce decree for trivial reasons. To me, it appears as if it is fashionable for couples to rush to the courts seeking a divorce,” Rev Fundira said.
The disparities emanating from the non-alignment of customary and English laws is not only confined to divorce cases.
Chief Mashayamombe, born Mr Steven Chiketa, said he often faced challenges at his traditional court when matters to do with customary law arose.
The traditional leader said he often clashed with lawyers and magistrates over interpretation of customary laws and how to align them with English Law.
Chief Mashayamombe said he had long approached Government departments and the Judicial Service Commission highlighting the need to align the laws.
He said an incident that happened at the Chegutu Magistrates’ Court in 2013 drove him to study Law so that he could make informed decisions.
“I had ruled at my court that a villager must pay a cow as damages. After taking the cow, I was sued in my personal capacity and was ordered by the courts to return the cow. I refused since I made the ruling basing on customary law. I was charged with contempt of court but was later released,” Chief Mashayamombe said.
He said what happened was a clear indication of how non-alignment of laws affected justice delivery.
Eighty-one-year-old Chief Mashayamombe is reading for his doctorate with a thesis titled “An investigation into the nature of inter-relationship of Shona customary law and English law.”
