It is apparent for some reason that the distribution of property at the dissolution whereby parties are cohabitating or in an unregistered customary law union has had a tenacious grip on courts for a while now. Our very own courts have realized the injustices visited upon women who are caught up in unregistered customary law unions or cohabitation upon dissolution of property. This is article will look at one of the remedies that one can use if parties have been living together and feel they are entitled to something.

In most instances, couples are living together and not legally married. As they are living together they can probably venture into acquiring properties, have children and assets. The problem eventually comes when they decide to dissolve the union. So the issue comes when both parties have to share the profits/assets and in most cases women are disadvantaged during the distribution and yet they would have directly or indirectly contributed.

In terms of article 16 of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Zimbabwe acceded, State parties are enjoined to:-

"take all appropriate measures to eliminate discrimination against women in all mattersrelating to marriage and family relations and in particular [to] ensure, on a basis ofequality of men and women:

(h) The same rights for both spouses in respect of the ownership, acquisition,management, administration, enjoyment and disposition of property."

Further section 26(c) of our Constitution provides that:-

"The State must take appropriate measures to ensure that there is equality of rights andobligations of spouses during marriage and at its dissolution;"

Tacit Universal Partnership;

Previously, in Zimbabwe, in order to find protection for women in such unions courts had to rely on some suitable general law principles, such as the Tacit Universal Partnership. Cohabiting couples do not have the same automatic rights as married couples under the law. If parties live together but don't conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party must go to court, at some expense, to prove that entitlement. To do so, the party had to prove that they were in a 'Tacit Universal Partnership', so that one party is entitled to certain property and assets of the other party, on separation. In this regard the courts would have to determine if a Tacit universal Partnership existed between the parties.

This type of partnership was usually entered into without specification of its nature, which sometimes could constitute common enjoyment of any other partnership of profits. However a husband and a wife cannot enter into a universal partnership with each other .A Tacit Universal Partnership would therefore be constituted by a couple that is cohabitating or in a civil partnership and not legally married.

Now, according to the new Marriages Act [Chapter 5:15] the law has codified the position by introducing a civil partnership and recognizing an unregistered customary law union as a marriage. In terms of section 41 of the Act, parties shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship and, for this purpose, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall, with necessary changes, apply on the dissolution of any such relationship

The circumstances referred to in may include—;

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. the care and support of children;
  8. the reputation and public aspects of the relationship

Both parties should be above the age of eighteen years; should have lived together without legally being married to each other, should not be within the degrees of affinity or consanguinity and having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis.

Whilst the efforts by Parliament in providing relief to such women maybe commendable, women ought not to be ignorant. A definitive remedy has been provided by changes in the law pertaining to the rights of parties at the termination of such unions. Our law has long recognised contribution as including indirect contribution even by looking after the family and performing domestic chores. Where a party's contention is that what he acquired was for himself alone and not to be shared would simply be a perpetration of the discrimination against women. The 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 content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.