Our constitution, the marriage institution

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