In a number of cases people are married customarily and their marriages are not registered hence the reference to unregistered customary union. Different legal principles apply to the sharing of property upon dissolution of an unregistered customary union. Thus, the Matrimonial Causes Act which applies to the division of property on termination of a marriage does not apply to the sharing of property on termination of an unregistered customary union. This is because an unregistered customary union is not a marriage in the strict sense of the word.
A person who wishes to claim sharing of property on termination of an unregistered customary union must first show that there was in existence a customary union. This becomes important where the other party insists that the parties never concluded a customary law union. In most Zimbabwean cultures a customary union comes into existence on payment/part payment of lobola by the man to the in-laws. Proof of this fact would therefore suffice.
Second, it should be proved that the union has been terminated. One cannot claim sharing of property on the basis of a customary union which is still in existence. A customary union can be dissolved by either the husband giving the wife ‘gupuro’ or by order of a customary law court.
The third most important aspect is to show that general law as opposed to customary law applies. As the parties would have been ‘married’ under customary law the presumption is that customary law applies to the sharing of property. However, if the property is shared according to customary law it will most likely be skewed in favour of the husband. It is therefore important that there be justification for departing from the application of customary law in favour of general law.
The last aspect is to outline the principle of law under general law in terms of which one is claiming sharing of property. Two principles are usually relied on; that is tacit universal partnership and unjust enrichment. The court in Nyamukusa v Maswera HH35/16 clearly outlines the requirements that should be satisfied when relying on each of the principles. Evidence must be led in support of the claim. In laymen’s terms under a tacit universal partnership one should prove that the parties each contributed something for their joint benefit with the purpose of making a profit. Under unjust enrichment one should basically prove that if the property is not shared the other party will be unjustifiably enriched at the expense of the other. In both cases proof of contribution by either party is important.
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