Our con­sti­tu­tion, the mar­riage in­sti­tu­tion

Chronicle (Zimbabwe) - - Gender/feature - Gen­der Tsun­gai Chek­erwa-Ma­chokoto

OUR Con­sti­tu­tion is one of the best in Africa in my opin­ion. The rea­son for this is its gen­der sen­si­tiv­ity. The 2013 Con­sti­tu­tion has spe­cial rights, es­pe­cially for women. It up­holds the gen­der bal­ance dis­course and pro­tects the rights of the dis­ad­van­taged or mi­nor­ity groups. Our Con­sti­tu­tion makes pro­vi­sions for the el­derly, the dis­abled and women as they all fall un­der the vul­ner­a­ble bracket.

Most im­por­tantly, it pro­tects the mar­riage in­sti­tu­tion. It pro­vides for the fam­ily unit but, un­for­tu­nately, many cou­ples are not aware of this.

Once in a while peo­ple should take time to browse through the bill of rights that are en­shrined in the Con­sti­tu­tion from sec­tion 48 to 78.

It is of crit­i­cal im­por­tance that peo­ple be­come well ac­quainted with their rights and make use of them.

In the mar­riage set­ting, there are a few is­sues that are recog­nised by our laws as le­git­i­mate rea­sons for a di­vorce.

One of the rea­sons is that there has to be ir­rec­on­cil­able dif­fer­ences and adul­tery is one such ex­am­ple in the Zim­bab­wean law.

Re­cently, the Con­sti­tu­tional Court ruled that adul­tery still ex­ists as an is­sue that can cause di­vorce.

To­day I have a few is­sues around fam­ily law that I would like to share with both women and men.

Women, un­for­tu­nately, do not know that if a man cheats on his wife, she can sue him for adul­tery.

Women, in­stead of head­ing to the courts and claim­ing con­sti­tu­tional pro­tec­tion pro­vided for them, they en­gage in strange things that are de­mean­ing to them.

They go to un­scrupu­lous peo­ple for juju and dif­fer­ent kinds of love por­tions that are not even nec­es­sary.

Only a man that wants to be kept will stay. No mat­ter what a woman does, if a man wants to go, he will leave.

Noth­ing will stop him. Tak­ing le­gal ac­tion through su­ing has worked for a lot of women.

They get mone­tary com­pen­sa­tion for in­fi­delity. The amount of money de­pends on the cir­cum­stances sur­round­ing each case.

There are le­gal aid lawyers that are avail­able that are sub­sidised by the govern­ment.

Th­ese lawyers of­fer their ser­vices free of charge. There is no ex­cuse for women to end up en­tan­gled in hu­mil­i­at­ing prac­tices in pur­suit of re­venge or re­tain­ing love.

If the man de­cides to leave, it would be bet­ter to get money as com­pen­sa­tion from him than to get noth­ing at all save for bit­ter­ness and hy­per­ten­sion. He should pay for your pain and suffering. Women that are mar­ried in com­mu­nity of prop­erty should know that most mar­riages in Zim­babwe ex­cept the ones with a prenup, are out of com­mu­nity of prop­erty.

This means that, con­trary to pop­u­lar be­lief, there is no au­to­matic half/half own­er­ship/en­ti­tle­ment to mar­i­tal prop­erty.

In the event of a di­vorce, the court will di­vide prop­erty based on a “his”, “hers” and “theirs” for­mula.

In other words, the par­ties usu­ally get to keep what­ever they can prove they pur­chased.

So if you got into mar­riage with, say, your car, it would be 100 per­cent awarded to you or if you bought a house by your­self with­out as­sis­tance from your spouse, you are likely to get the house un­less your spouse can prove some other non-fi­nan­cial con­tri­bu­tion — for ex­am­ple su­per­vis­ing the builders — then they will get a com­men­su­rate per­cent­age based on such con­tri­bu­tion, not an au­to­matic half/half.

So please, es­pe­cially women (and even men), make sure that your name is on the Ti­tle Deed.

Never fool your­self with a false sense of “it’s ours” when the prop­erty is in one spouse’s name.

An­other tip is about cus­tody bat­tles, cus­tody of mi­nor chil­dren is not au­to­mat­i­cally given to moth­ers.

The over-rid­ing prin­ci­ple is what is in the best in­ter­est of the child.

It is not sel­dom that the best in­ter­ests of the child are pro­tected by award­ing cus­tody to the fa­ther es­pe­cially in cases where the mother is not sta­ble, is abu­sive, or the fa­ther has been do­ing most of the car­ing for the child or where giv­ing the mother cus­tody would mean un­nec­es­sar­ily up­root­ing the child from the en­vi­ron­ment they are used to which has the usual com­forts and con­ve­niences.

Women should avoid us­ing chil­dren as hag­gling tools or meal tick­ets be­cause it is not about you the par­ent but about which cus­tody ar­range­ment will cater for the best in­ter­ests of the child.

The last tip is about spousal main­te­nance. Whether you are the hus­band or the wife, you can claim spousal main­te­nance from your spouse on di­vorce ei­ther as lump sum or monthly pay­ment es­pe­cially, for ex­am­ple, where you had agreed to quit your job to look af­ter the home and the chil­dren.

The main­te­nance is usu­ally de­signed to sus­tain you un­til a pe­riod when you should have rea­son­ably se­cured a job (which also de­pends on your age and other fac­tors).

Ladies do not be sur­prised when he wants you to pay the al­imony.

So women, you have rights to claim. If you are cheated on do not en­tan­gle your­self in drama that in­volve the other woman.

Do things with class and get com­pen­sa­tion for your pain and suffering.

Both the lawyer in me and the gen­der ac­tivist in me agree that women should stand up for them­selves and fight for what is right­fully theirs.

Men have the right to claim al­imony or main­te­nance too. Times are chang­ing and so the past myths and stereo­types have been re­placed by a mod­ern way of do­ing things.

Men can get cus­tody of the chil­dren as well de­pend­ing on what the court con­sid­ers is the best in­ter­est of the child.

Tsun­gai Chek­erwa-Ma­chokoto can be reached on tsungi­ma­chokoto@gmail.com

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