The Supreme Court judgment in the Case of Gerald Chigwada v Penelope Chigwada and 2 Others SC 188-20 has been viewed as a big let-down on the part of women by a certain section of Zimbabweans.

It has been viewed as a tool of manipulation by men against vulnerable women who at most are economically less empowered.

It has also been used to view the bench as less interested in protecting the women who are most affected by extreme sections of society.

This criticism is totally and factually misplaced. The role of the courts is to interpret laws as they are constructed by the relevant law making authorities.

Zimbabwe is a democracy and that demarcation of duties and drawing of boundaries in the process of executing the constitutionally entrenched mandates ought to be visible.

The main focus of this paper is to direct Zimbabweans and relevant authorities on what they really need to focus on to avoid the feared situations in the Chigwada case.

MARRIAGE UNDER MARRIAGE ACT (CHAPTER 5:11)

A marriage solicited under Marriage Act (Chapter 5:11) in Zimbabwe is automatically a marriage out of community of property.  What this entails is that parties to a marriage can own property in their respective names independent of the other and as ownership entails, the party will be at large to deal with the property in a manner that any owner of a particular thing can do with his or her property. This right is actually entrenched and governed by Section 71 of the Constitution of Zimbabwe 2013.

The legal instrument that governs property rights of married persons is the Married Persons Property Act (Chapter 5:12) and this act clearly stipulates that marriages in Zimbabwe are out of community of property.

WHAT HAS BEEN THE PROBLEM?

The issue of proprietary rights has always been a sensitive topic since time immemorial and one wonders why we still have an outcry over a legally clean judgment as far as the interpretation of law is concerned. The problem is not the law. The problem is not the judges. The problem is the people. The problem is the institutions that are endowed with law making decision powers and at times churches, which at most, people regard highly and hold on to their teachings.

The Parliament

This is the law making institution and really should be put to task by everyone and all the pressure groups to work towards bringing laws that adequately save the nation. The Married Persons Property Act (Chapter 5:12) is clear that since 1929 marriages in Zimbabwe are out of community of property. If truly this position leaves the African women vulnerable then it was for the parliament to change the laws. Section 26 (d) of the Constitution provides that,

"The State must take appropriate measures to ensure that- in the event of dissolution of marriage, whether through divorce or death provision is made for the necessary protection of any children and spouses."

The obligation really is on the State and the question that one has to ask him/herself is whether the pinpointed organ has put in place the measures which protect surviving spouses in a manner that's deemed adequate. The honest answer is no such measures have been put in place and parliament as the representative of the people ought to have spearheaded the cause. Parliament should be held accountable.

Pressure groups

Pressure groups where are you? What has happened to the deafening but constructive noises that were heard during the days of the Marriage Bill? These sensitive issues are issues to really give consideration and exert pressure on the responsible authorities to ensure that there is compliance with the constitution and that there are laws which save the people in a manner that the majority would consider fair. Therefore, it will be acceptable for much criticism to be cast on the watchdogs of women rights, or the so- called vulnerable groups in society and not on the courts.

The Church

In the course of reading the Chigwada judgment, one thing that came to mind was the surviving spouses' belief that all the property they had was "theirs" and she had the entitlement over it since the church teaches that once people are married they become one flesh. This is a biblically correct teaching but which is void of the sound understanding of the laws of the land. What comes out here is that the teachings and counselling sessions that "the would be soon married" are exposed to give a wrong picture altogether of what a marriage they undertake entails in the legal realm. This alone creates problems and instead of crying about the judgment, masses should cry unto the churches to give people sound legal advice so that people enter into marriage transactions they truly understand.

Is there a way out other than lobbying the relevant law making institutions?

There are vehicles at law that can be used to deal with uncertainties cast by the laws surrounding the marriage regime in Zimbabwe and those can be utilised to ensure certainty over proprietary rights of married persons. The vehicles include;

a) Prenuptial contracts

b) Family trusts

What is a pre-nuptial contract and how does it work?

An antenuptial contract is a written contract created by two people who are intending to marry each other. It is a contract by the soon to marry which typically lists all of the property each person owns (as well as any debts) before the marriage and specifies what each person's property rights will be as soon as they  legally  marry in respect of the already owned property and the property to be owned after marriage. Antenuptial contracts are also called prenuptial contracts or "prenups" in short and in Zimbabwe antenuptial contracts are provided for in Antenuptial Contracts Act (Chapter 5:01). This contract actually gives certainty and avoids all problems associated with the out of community of property regime.

What is a family trust?

A family trust by definition is an estate planning tool. It provides a method of managing the assets belonging to an individual or couple while they live, as well as to specify how the assets are to be distributed when they pass away. Many people find that a trust is a superior alternative to simply leaving a will, as the trust is not subject to probate, as is a will, and it is kept private, rather than becoming a matter of public record. A family trust gives certainty and deals away with shocks that surviving spouses find themselves in when one dies.

Advantages of family trusts

(a)   A family can actually invest or run a family business through the trust and the manner in which the proceeds will be shared will be clearly and unequivocally provided for.

(b)   Erode incidents of family bickering

(c)    Clearly communicate how beneficiaries will benefit and clearly deal with uncertainty and conflict that can arise in circumstances where there is no clear plan.

(d)    A family gives their family trust a life span and clearly provides on how affairs will be run till the last day of the existence of a trust.

(e)   Assures safety of one's assets from being followed after by creditors in the event of either spouse falling heavily in debts.

(f)     It takes away possession from an individual so incidents where property is sold in times of crisis or to the detriment of another are eliminated.

In conclusion, it's not a lost battle for those who felt hard done by the Chigwada judgment. It's time the nation focuses on real problems and deal with them accordingly. It's time also other relevant vehicles which ensure certainty in any marriage regime are popularised to the benefit of all.

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.