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The recognition and distribution of assets acquired by parties during an unregistered customary law union upon dissolution of same has and continues to pose considerable headaches for both our courts as well as advocates for women empowerment.

An unregistered customary law union is a union contracted by a man and a woman according to customary law in which lobola and all other customary rites are performed. In essence and under customary law this confers marriage rights and parties are considered as husband and wife. However in terms of general law such unions are not recognized for purposes of dissolution or divorce as it were. Customary law confers very restrictive rights to women in the event of dissolution hence a woman is only allowed her personal property known as “mawoko” property. Customary law is inimical to the level of contribution made by women during the subsistence of the union.

The present law as depicted in statutes treats unregistered customary law unions with ambivalence. While the unions are recognized for other purposes such as maintenance, inheritance, pensions, criminal law privilege among others, same are not recognised for purposes of equitable distribution of assets upon dissolution.

In terms of section 3 the Customary Marriages Act (Chapter 5:07) any marriage contracted according to customary law is not valid unless solemnised in terms of the Act. This is the root of all the problems. It follows that section 7 of the Matrimonial Causes Act (Chapter 5:13) which provides for an equitable distribution of assets is not primarily applicable to customary law unions as it only applies to civil and customary law marriages which are registered marriages.

The wise words of the court in the case of Feremba v Matika HH33 /07 sums it up;

“As correctly pointed out by the trial magistrate, decisions of this court and of the Supreme Court on the issue have shown judicial activism on the part of the courts in an effort to find a remedy where none exists at law. It is now the accepted position at law that general law has made no direct provisions for the distribution of estates of person in unregistered customary unions even if for some purposes, the law recognises the unions as marriages. Neither has statute law made such provision. While the decisions of this and the Supreme Court are clear that some remedy has to be fashioned for the benefit of women in the position of the respondent, the courts have not been unanimous on the basis of such a remedy”

The courts, in a bid to achieve justice, have had to trade the judicial robe with the legislative jacket in form of judicial precedence. However, it is important to emphasise that there has not been the uniform voice as to how to approach the predicament.

The import of the court’s argument is that where a party seeks to call the court to distribute assets of parties to an unregistered customary law union there is need for justification for such. The first hurdle is to use the choice of law formula and show that customary law does not apply as it will lead to an injustice.

Secondly, a party must then specifically plead a common law principle upon which the claim for distribution is based. Thirdly, should general law be applicable, the relevant court with jurisdiction should be approached. This has been the major problem with litigants. This is as far as the law provides. Suffice it to retreat to the new constitution.

The new Constitution, provides for the supremacy of the constitution and that any other law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Among the national objectives of the Constitution is an obligation on the state to take appropriate measures to ensure among other marriage related rights, that there is equity of rights and obligations of spouses during marriage and upon dissolution. The state must also ensure that there is necessary protection of children and spouses upon dissolution by either death or divorce.

In addition the new constitution specifically provides for rights of women which include equal dignity. All laws, customs, traditions and cultural practices that infringe the rights of women conferred by the constitution are void to the extent of the inconsistency. It is important to note that this is a great milestone in terms of recognition and protection of women’s rights. One forceful word must be observed.

The new Constitution is very clear that there is equality of rights and obligations upon dissolution of marriages. This constitutes a very positive statement which must address the current problems bedevilling the unregistered customary law unions. Be that as it may, section 26(c) and (d) are very clear and admits to no other interpretation. There should be equality upon dissolution of a marriage. So if customary law provides that a woman is not entitled to equitable distribution of property upon dissolution of an unregistered customary union, then such a law is void.

The new constitution has pierced the veil of darkness that has for a long time shrouded the institution of unregistered customary law unions. It is yet to be seen to what extent the Constitution will help women seeking remedies in customary law unions.

• Written by Fourie Revai, Access to Justice programme manager. For feedback, questions and comments please feel free to email [email protected] or to send a whatsap message on 0777 828201 and we will definitely address them. Look out for the next article in this column next week and the Kwayedza every Thursday. Let’s discuss the law.