The Sunday Mail
Odellia Mutangi
SINCE the announcement of the new Marriages Bill, 2017, there has been a great deal of chatter. What is surprising is that this chatter is not about the reconciled age of consent nor the Bill’s implications on customary marriages in Zimbabwe.
If you listen closely, what you will hear is the endless chatter of worried women, all with one pressing question weighing down their hearts: “Am I still protected?”
Despite all the good that the new Bill promises, its introduction for rights of unmarried cohabitants becomes a trending topic of conversation between friends, family and on various social platforms.
For many, this summarised clause has been taken to mean one simple thing, namely that: if A and B are civilly married but one day B wakes up and decides to leave the matrimonial home and go stay with C, it implies that in the unfortunate event that B passes on, C will get everything and A will be left with nothing.
Undoubtedly, just the thought of such a situation being considered would bring any woman to tears, especially one who has dedicated a greater portion of her adult life to building a sustainable life with her husband for their family.
Fortunately, this is not what the new Bill or its drafters are opting to endorse, and any interpretation alluding to such would be a gross misapprehension.
Although, as far as misinterpretations goes, the origins of this one makes sense given that the portion of the Bill that has been brought to the attention of many Zimbabweans is only a laconic preamble, with no context whatsoever of the more detailed provision contained in the Bill itself. The best place to start is to clarify what constitutes cohabitation for the purposes of the new Bill. Cohabitation refers to a stable, monogamous relationship in which a couple chooses to live together as spouses but not get married.
A cohabitative relationship looks to the observer exactly like as any marriage would, with the only distinguishing feature being its lack of legal sanction.
These relationships are sometimes referred to as common-law marriages or domestic partnerships, but in terms of the new Bill they will be referred to in Zimbabwe as civil partnerships.
The actual definition of such relationships varies from jurisdiction to jurisdiction, but there are three universal components: i. There must be a sexual relationship between the couple; ii. There must be a factual cohabitative relationship (in other words they must live in the same home); and iii. There must be stability of the relationship (in other words, it cannot be an “on-again off-again” casual arrangement). The common misconception is that if B moves in with C, as mentioned earlier, that C is fully given and recognised as having certain rights under the Matrimonial Causes Act (Chapter 5:13)with immediate effect.
Again, this is not accurate. In fact, upon further examination of the new Bill, one would notice that existence of a civil partnership is always judiciously determined by a court of law.
This determination is made in consideration to various factors, for instance duration of the relationship, degree of mutual commitment to a shared life, as well as the reputation and public aspect of the relationship.
Put simply, irrespective of the fact that B has decided to shack up with C for months on end, it does not mean that C is entitled to maintenance or a surviving spouse’s share of B’s estate; and it certainly does not mean A will be left with nothing.
The intention of the new Bill is not to promote adultery or afford overarching rights to “small-houses”. The intention of this Bill is to protect those who have, for whatever reason, found themselves in the outskirts traditions and still devote themselves to building a long and healthy life, future and family with someone they love.
Odellia Mutangi is a lawyer with Dube-Banda and Nzarayapenga Partners
