A reflection of women’s marriage rights-celebrating women’s month, a legal perspective

By Mlondolozi Ndlovu

Zimbabwe joins the rest of world in celebrating the rights of women in the month of March.

A lot of female colleagues have asked me to write about their how the Zimbabwean legal system protects their rights.
I shall do so in this opinion.

How does the Constitution protect women as well as their rights?
The 2013 Constitution recognizes the need to protect women and bring about equality between men and women. Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addresses damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women.
Section 13 (3) of the Constitution states that “Measures referred to in this section must protect and enhance the right of the people, particularly women, to equal opportunities in development”
Section 14 (2) the Constitution and agencies of government at every level must ensure that appropriate and adequate measures are undertaken to create employment for all Zimbabweans especially women and youth
Section 17 (a) of the Constitution states that the State must promote the full participation of women in all spheres of Zimbabwean Society on the basis of equality with men. Section 17 of the Constitution provides for gender balance between men and women.
Section 56 (2) states that, women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
Section 65 (6) & (7) of the Constitution on labour rights states that women and men have a right to equal remuneration for similar work and women employees have a right to fully paid maternity leave for a period of at least three months.
Section 80 of the Constitution provides that:
1. Every woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities.
2. Women have the same rights as men regarding the custody and guardianship of children, but an Act of Parliament may regulate how those rights are to be exercised.
3. All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.
Protection of rights of women during the Subsistence of the marriage
Section 26 (c) of the Constitution states that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This section intends to protect women during the subsistence of marriages. It realizes that women and men have the same rights in a marriage therefore women can own her property in a marriage. Unlike before where women could not register property in their own names but had to do so in the names of their husbands, they now can have their property registered in their own names and section 71 of the Constitution ensures that such property rights are fully recognized and protected.
There is however a need for law reform to ensure that Section 26 (c) of the Constitution is upheld. As it stands as per section 2 of the Married Persons Property Act all marriages in Zimbabwe are out community of property unless parties to the marriages agree otherwise. During the subsistence of the marriage, women do not get to enjoy the same rights especially when it comes to matrimonial property rights. Most matrimonial Property rights are recognized during the dissolution of the marriage and not during the subsistence of the marriage. During the subsistence of the marriage a wife does not have much rights in relation to the property owned by her husband. In the case of Muswere v Makazanza 16/05 the Makarau J court remarked that;
“the position in our law currently is that a wife cannot stop her husband from selling his property even if it constitutes the matrimonial home.
“…………it presents itself clearly to me that as the position at law that a wife in the position of Mrs Makanza has no real right in immovable property that is registered in her husband’s sole name even if she directly and indirectly contributed towards the acquisition of that property. Her rights are limited to what she can compel………………her rights, classified as personal against her husband only, are clearly subservient to the real rights of her husband as owner of the property”
This case as well as other decided cases for example Musindo & Anor v Kereke CIV ‘A’ 28/21, Sithole v Sithole HH 674/14, Semwayo & Anor v Chatara & Anor HH 48-07, and Madzara v Stanbic Bank Zimbabwe Limited and Ors HH 546-15 clearly depict how women do not enjoy the same property rights during the subsistence of the marriage. The courts in the mentioned cases also called for reform of the law to protect married women.

Rights of women upon dissolution of marriage through divorce.

Section 26 (supra) also mandates the State to protect rights of women upon divorce. Section 7 of the Matrimonial Causes Act [Chapter 5:13] governs the distribution of matrimonial property upon divorce. Its interpretation allows for equitable distribution of matrimonial property upon divorce. In the case of Mhora v Mhora HH 446/18 the court remarked that the interpretation of the Matrimonial Causes Act should be interpreted to conform to the Constitution. Essentially this means the Act should be interpreted to ensure that upon divorce there is equitable distribution of property. Article 16 of the Universal Declaration of Human Rights (1984) provides that men and women of full age are entitled to equal rights as to marriage, during marriage and at its dissolution. This means that there must be a fair and equitable distribution of at the dissolution of the marriage. In a country where women are largely treated as dependents of men, a ruling by Zimbabwe’s Supreme Court in Mhora v Mhora SC 617/18 that entitles married couples equal share of their property upon divorce has been hailed as historic by women’s rights advocates.

The courts have to ensure that men and women are treated in accordance with the principles of equality and justice when it comes to marriage and its dissolution. While judgments by the courts of Zimbabwe have created a certain understanding of equality, the understanding of male litigants mainly continue to be shaped ‘by more’ rigid ideas of family law and gender roles that tend to devalue the gendered roles of women. The learned judge in Mhora v Mhora (supra) also remarked that the work of a woman during the subsistence of marriage should not be given less value than that of a man. At the end of the day, the court held that women are entitled to a share of matrimonial property upon divorce. This decision ensures that at dissolution of the marriage the spouses enjoy equal rights and obligations as provided for by the Constitution.

Rights of Women during dissolution of marriage upon death of spouse
The Deceased Estates Succession Act [Chapter 6:02] ensures that surviving spouses who were married out of community of property are protected upon the death of another spouse. Contrary to the past practises where upon the death of a husband a wife was left at the mercy of the deceased spouses’ relatives, the law now recognizes the rights of the wife upon the death of her husband who dies intestate (without a will). Section 3 and 3A of the Act ensure that a surviving spouse of a person who died intestate is awarded a house upon which she lived immediately before the husband’s death and is entitled to receive from the free residue of the estate household goods and effects which immediately before the spouse’s death, were used in relation to the house or domestic premises. This means that even without a will, a wife will have rights to part of the property left by her husband and the relatives of the deceased cannot evict her.

The Administration of Deceased Estates Act applies generally to the estate of a person that was married under the Unregistered Customary Union (hereinafter referred to as UCLU). An UCLU is a potentially polygamous marriage which allows a husband to have many wives. Under Customary law, the surviving spouse receives the immoveable property in which they were living in and one-third of the net estate. In instances where the deceased had more than one wife, one third of the net estate is shared between the wives with the two-thirds being shared equally amongst the children. If the wives lived in separate houses, each wife gets ownership of the house she lived in immediately before the husband’s death together with all the household goods. If the wives lived together in the same house at the time of the deceased’s death, all wives get joint ownership of the house or a joint usufruct over the house.

It is important to note that a husband who dies testate can disinherit his wife. The wife will not be entitled to any property if the deceased expressly disinherit her. In the case of Chigwada v Chigwada & Ors 188/20, the court held that a husband can disinherit his wife on the basis of his freedom of testation.

The New Marriages Act [Chapter 5:15] and Rights of Women
The new Marriages Act seeks to consolidate the law relating to marriages and ensure that parties to all types of marriages have equal rights and obligations. The Act is Section 6 provides for the equality of all marriages registered in terms of this Act and states that parties to any marriage have equal rights and obligations during the subsistence and at dissolution of the marriage. This means that customary law marriage and civil marriage are the same and women to customary law marriages will be afforded the same rights as those enjoyed by women in civil marriages especially property rights.

The introduction and recognition of civil partnerships may be criticized but it protects property rights of women who are not married but are in relationships. Most women in Zimbabwe have not had their lobola or bride price, paid yet they have built homes and acquired properties with their partners and upon termination of the partnership they were left with nothing and no protection at law. So according to the new marriages Act, when the relationship is terminated a woman can use the civil partnership provision, to get protection which I also accorded to married people that are divorcing. The Matrimonial Causes Act will be used to determine the dissolution of the relationship, and how the property is shared.

*Mlondolozi Ndlovu is a Zimbabwean media practitioner, media researcher and media trainer. He is also a law student at the University of Zimbabwe*