A legal perspective on women’s marriage rights
ZIMBABWE joins the rest of world in celebrating the rights of women in this month of March. A lot of female colleagues have asked me to write about how the Zimbabwean legal system protects their rights.
I shall do so in this opinion piece.
How does the Constitution protect women as well as their rights?
The 2013 Constitution recognises the need to protect women and bring about equality between men and women. Zimbabwe’s 2013 Constitution addressed women’s rights and gender equality and its Bill of Rights addresses damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women.
Section 13(3) of the Constitution states that “Measures referred to in this section must protect and enhance the right of the people, particularly women, to equal opportunities in development”.
Section 14(2) of the Constitution states that government and agencies of government at every level must ensure that appropriate and adequate measures are undertaken to create employment for all Zimbabweans especially women and youth.
Section 17(a) of the Constitution states that the State must promote the full participation of women in all spheres of Zimbabwean society on the basis of equality with men. Section 17 of the Constitution provides for gender balance between men and women.
Section 56(2) states that, women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
Section 65(6) and (7) of the Constitution on labour rights states that women and men have a right to equal remuneration for similar work and women employees have a right to fully paid maternity leave for a period of at least three months.
Section 80 of the Constitution provides that:
Every woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities.
Women have the same rights as men regarding the custody and guardianship of children, but an Act of Parliament may regulate how those rights are to be exercised.
All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.
Protection of rights of women during the subsistence of a marriage
Section 26(c) of the Constitution states that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This section intends to protect women during the subsistence of marriages. It realises that women and men have the same rights in a marriage, therefore, women can own property in a marriage. Unlike before where women could not register property in their own names, but had to do so in the names of husbands, they now can have their property registered in their own names and section 71 of the Constitution ensures that such property rights are fully recognised and protected.
There is, however, need for law reform to ensure that Section 26(c) of the Constitution is upheld. As it stands as per Section 2 of the Married Persons Property Act all marriages in Zimbabwe are out community of property unless parties to the marriages agree otherwise. During the subsistence of the marriage, women do not get to enjoy the same rights especially when it comes to matrimonial property rights. Most matrimonial Property rights are recognised during the dissolution of the marriage and not during the subsistence of the marriage. During the subsistence of the marriage a wife does not have many rights in relation to the property owned by her husband. In the case of Muswere v Makazanza 16/05 Justice Makarau remarked: “The position in our law currently is that a wife cannot stop her husband from selling his property even if it constitutes the matrimonial home ... it presents itself clearly to me that as the position at law that a wife in the position of Mrs Makanza has no real right in immovable property that is registered in her husband’s sole name even if she directly and indirectly contributed towards the acquisition of that property.