By newzimbabwe
Africa-Press – Zimbabwe. NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal) to discuss with us legal issues that affect Zimbabweans. The discussions are of a general nature and those seeking specific legal advice should contact their lawyer.
Reporter: Welcome back Mr. Madzima, this week we want to discuss on the law of civil partnerships, without beating around the bush, is this law crafted to protect ‘small houses’?
VM: (laughs) A very direct question but it reflects the general perception of many. The intention and purpose of the law is however far removed from that perspective.
In Zimbabwe people normally live together as husband and wife under the following marriage regimes, as a couple under a civil marriage, that is a marriage registered under the Marriages Act Chapter 5:11 which was formerly and is still commonly known by many as Chapter 37, a qualified civil marriage which is potentially polygamous and is solemnized by a Minister of religion, normally for the Islamic religion. There is also the registered or unregistered customary marriage, which involves the payment of lobola and is also potentially polygamous.
However, there are many couples who live together and have lived together for years as husband and wife and have not formalized their union under any of the categories I stated. Those are ultimately the people the law was put in place to protect.
It is really a question of equity and justice more than anything else.
Reporter: Am not completely convinced, however, please explain to us what a civil partnership is?
VM: In Zimbabwe, firstly, a civil partnership is a relationship between a man and woman , this is important as some countries extend the definition to include people of the same sex in a relationship.
The man and woman must be above the age of 18, meaning that they are able to contract a marriage in Zimbabwe. They should also have lived together as a couple under a genuine domestic basis. A variety of circumstances are considered here, but in summary, it must be established that they were living together as husband and wife but for the actual formal solemnizing of their relationship under the categories I mentioned earlier.
The couple cannot be of the same bloodline, that is brother and sister, first or second cousins. There are exceptions in law to first and second cousins, which exceptions include, whether or not the couple knew that they were related et cetera but that is a discussion for another day.
Reporter: So how does one prove that they qualify as a civil partnership, what is the criteria?
VM: Well, the law has left this to the courts to interpret what qualifies as a civil partnership for purposes of enjoying the rights that follow. There is no set criteria that states that this or that is what is necessary to prove before it can be considered as a civil partnership. We can say that the law is developing in that area.
Each case is dealt with according to its own circumstances.
They are however issues the courts will consider in varying circumstances, issues like how long the relationship lasted, the nature and extent of their ‘living in’ together or common residence, the degree or extent of their financial dependence or interdependence. The ‘couple’ may have also bought property together et cetera. The relationship has to be of a sexual nature off -course.
Reporter: So in terms of explanation for qualification, ‘small houses’ will have ‘marriage rights’ should that relationship come to an end?
VM: I suppose we have come back to the question we started on.
The law does recognize that some civil partnerships may include what you are terming as ‘small houses’ and some rights do follow dissolution of civil partnership.
A court that is ceased with the task of dissolving the civil partnership where there is to be distribution of assets or there are such claims will pay due regard and not ignore the rights of the other spouse who is not party to this dissolution. Long and short, the assets that belong to the spouse, if proved to be the assets of the spouse, will not form a part of civil partnership property if I can loosely call it that.
Reporter: So does the claim by a ‘small house’ dissolving a civil partnership not expose the married person to the crime of bigamy?
VM: I will repeat that the law on civil partnerships is not limited to the issue of small houses. It is for people who live together in a domestic sexual relationship.
To your question, the dissolution of a civil partnership where one partner has a spouse under a civil marriage, the law has specifically excluded the crime of bigamy, so no, the married person will not be exposed to the crime of bigamy.
Reporter: Does this law extend to the question of inheritance for people under civil partnerships when one dies?
VM: The Marriages Act of 2022 does not specifically include the word inheritance and the laws that protect spouses on the death of a spouse do not automatically apply. It goes back to the point that the ‘civil partnership’ may have to be proved to the satisfaction of the court to qualify for inheritance or a claim on the estate of the deceased.
Reporter: Thank you, Mr. Madzima we have run out of time.
VM: Thank you.
You can contact Vengai Madzima on [email protected] or at www.mcmlegal.co.zw.
Source: NewZimbabwe.com
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