Victory for women in customary law unions
WOMEN in unregistered customary marriages will now be awarded part of property accumulated during the subsistence of such unions following a recent landmark High Court ruling.
The judgment — which was handed down last month and only made available on Thursday — was for a case brought by Harare woman, Ms Melody Kurebgaseka.
Ms Kurebgaseka approached the court seeking relief after she was denied part of the property when her unregistered customary union of 14 years to Tinei Mautsa collapsed.
Justice Alfas Chitakunye held the law governing such unions as unjust and awarded Ms Kurebgaseka part of the property accumulated during the subsistence of the marriage.
He called for an amendment of the law to protect the interests of women who stand to be left destitute after such marriages are dissolved.
“I wish to add my voice to the call for the legislative intervention, just as what happened with the situation of surviving spouses at the demise of their husbands in terms of the Administrative Estates Act, (Chapter 6:01),” said Justice Chitakunye.
“While the efforts by the courts in providing relief to such women may be commendable, a more decisive and definitive remedy should be provided by changes in the law pertaining the rights of parties at the termination of such unions.
“Where parties have met all the customary law marriage rites, a recognition of their marriage albeit unregistered as a marriage for purposes of distribution of assets acquired during the union, would go a long way in eliminating discrimination against women on the basis of the type of marriage contracted.”
The law does not recognise an unregistered customary union as a marriage and treats it as co-habitation, and upon dissolution of that union, the woman is only entitled to leave with “umai” or “mawoko” property.
“Umai” or “mawoko” property refers to goods such as utensils and linen, which in most cases do not have any value of note.
This often left women impoverished after having spent a significant part of their lives in the union performing all the duties and helping in acquiring valuable properties as is expected of a wife.
Justice Chitakunye ruled that the law position, whereby a wife under customary law was only entitled to “umai/mawoko” property had been found to be unjust in many instances.
He said Ms Kurebgaseka’s “umai/
mawoko” property in terms of customary law in the circumstance of the case would be unjust and an affront to a modern-day democratic society, where both local and international calls have been made for equal rights and opportunities.
“This is a union that lasted for 14 years and to expect the defendant (Ms Kurebgaseka) to move out with only “umai/mawoko” property would be the height of judicial injustice,” said Justice Chitakunye.
“Besides, the submissions by the parties to this court is also vested with the discretion to determine whether or not the justice of the case demands that general law or customary law should apply. It is in that regard that I firmly hold the view that the circumstances of this case require that general law should apply.”
Justice Chitakunye noted that Mautsa, while denying that the general law should apply, did not give his own basis for seeking the matter to be determined in terms of customary law, given the lifestyle alluded to by Ms Kurebgaseka.
“He did not refute the surrounding circumstances that the defendant identified as indicative of the family’s lifestyle,” he said.
Justice Chitakunye found that Mautsa’s position was informed by a desire to take advantage of the customary law emplacement, where Ms Kurebgaseka would only be entitled to “umai/ mawoko” property on dissolution of the marriage.
Ms Kurebgaseka had claimed 50 percent of No. 2 Yardley Close, Chisipite, registered in her erstwhile husband’s name, but Justice Chitakunye reduced the claim to 25 percent.
“Accordingly, it is hereby ordered that the defendant is awarded a 25 percent share in the immovable property, namely 2 Yardley Close, Chisipite, Harare, whilst the plaintiff retains a 75 percent share of the same,” ruled Justice Chitakunye.
“The parties shall within 30 days of this order appoint a mutually agreed valuator to value the property. Should the parties fail to agree on a valuator, one shall be appointed for them by the Registrar of the High Court.”
Justice Chitakunye granted Mautsa the option to buy out Ms Kurebgaseka’s share in the immovable property within 12 months from the date of the valuation report.
But he found no justification to award maintenance.
The couple also have another house in Mandara, which is registered in the name of their children.
Ms Kurebgaseka was given the custody of the two minor children, who will be maintained at $350 each per month.
The court also allowed her to stay with the children at the Mandara property.
In his testimony, Mautsa told the court that the couple was married in 1996 and Ms Kurebgaseka was a house wife who brought no skill or asset into the marriage.
He insisted that there was no tacit universal partnership as this was purely a customary law marriage.
Through his lawyer, Mautsa also accused Ms Kurebgaseka of unjust enrichment, arguing that she was not engaged in any income generating activity from which she could have contributed to the business or welfare of the family.
As far as he was concerned, he acquired all the assets without his wife’s contribution.
He testified that he acquired No. 25 Coucal Drive, Mandara, in 2000, while he bought the Chisipite house in 2006 on his own, as an investment, without Ms Kurebgaseka’s contribution.
He said the position was the same with the various movable assets that were at the centre of dispute.
Ms Kurebgaseka, who was represented by Advocate Daphine Sanhanga, told the court that she entered into a tacit universal partnership on July 6, 1996, the day Mautsa paid lobola for her when she was 20 years old.
During the subsistence of the marriage, her responsibility as a wife was to ensure that Mautsa and the children were looked after well.
She said she also contributed to Mautsa’s business by giving advice to him when asked.
It was argued by Adv Sanhanga that Mautsa would be unjustly enriched if Ms Kurebgaseka only took the assets he offered to her.
Her client, she argued, deserved a substantial share in the assets.
Also at the centre of the determination was the choice of law, which the parties wanted applied to their case given their lifestyle.
Mautsa argued that since theirs was an unregistered customary law marriage, it ought to be governed by customary law.
In that regard, he argued, Ms Kurebgaseka was only entitled to that which customary law dictates - “umai/ maoko” property.
But Adv Sanhanga argued that the general law should apply as the parties maintained a Western lifestyle and were not governed by African customs and practices.
The couple lived in a low- density area, Mautsa was a businessman and farmer; their children attended private schools where they were taught and lived Western lifestyle, and the couple would go on holidays and shopping trips outside the country.
Justice Chitakunye said Ms Kurebgaseka was also entitled to all household appurtenances at No. 25 Coucal Drive, Mandara, two vehicles, namely a Ford Mondeo, a Mercedes-Benz 300D, two tractors of medium size and one disc harrow.