BY TATENDA NYOKA
There has been a lot confusion since the new MARRIAGES ACT [CHAPTER 5:15] came into operation after the promulgation of SI 164/22 by the President of the Republic, as to the RISE OF SMALL HOUSES AND SIDE-CHICKS.
There have been wide sentiments that have been proffered by some clerics, chiefs socialites and lawyers in the social media space suggesting that the Marriages Act is a threat to the sanctity of marriage especially the civil marriage. They also speculated that adultery damages have been outlawed. Most people have frowned at the recognition of a ‘new kid on the block’ called civil partnerships.
It has been argued that the new Marriages Act has made it possible to give protection to ‘small houses’ or ‘side chicks’ and in the circumstances reducing the significance of the civil marriage and in the end exposing flamboyant spouses being preyed upon by both men and women in order to satisfy their material needs.
The sentiments that the Act is now providing rights to small houses, side chicks or ben 10s, are, in my view, totally misleading and deceptive. It is as a result of these mischievous views that the writer wishes to set the record straight on this issue.
A mere perusal of the Act especially on section 5 (1) provides that civil marriage is monogamous and that is, it provides for one wife or one husband (I Corinthians 7 v 2). It then means that to have two wives or husbands during the subsistence of civil marriages is unlawful.
Nonetheless the Marriages Act [Chapter 5:15] in section 41 also provides for the realisation of civil partnerships and set the strict requirements for one to qualify as a civil partnership. The legislature has managed to codify the common law, and clearly circumscribe the considerations that the court ought to take to avoid potential abuse: (1) A relationship between a man and a woman who— (a) are both over the age of eighteen years; and (b) have lived together without legally being married to each other; and (c) are not within the degrees of affinity or consanguinity as provided in section 7; and (d) having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis; shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship and, for this purpose, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall, with necessary changes, apply on the dissolution of any such relationship. (2) The circumstances referred to in paragraph (d) may include— (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children; (h) the reputation and public aspects of the relationship
There is no ambiguity in these requirements. It is conspicuous that for a civil partnership to be recognised at law, parties must have lived together without being married to each other and must have relationship of couple living together on a genuine basis and in no circumstances can a small house fit within this criterion and an potential infringement by small houses is elbowed out.
Moreso, living together on a genuine basis is a requirement that has to be satisfied. It therefore prevents small houses or side chicks or even ben 10s from unduly benefiting, as has been complained by those who are against this progressive Marriages Act. There should be a clear and real intention to form a family, as such living together on genuine basis would meet the test of genuineness.
In my view the idea of civil partnership is to afford protection to women who in some cases might engage in a civil partnership whilst there is still the existence of a valid marriage in terms of the law.
I have had an occasion to interact with clients who have already separated from their spouses for 40 years but their civil marriages still subsisting albeit on paper but not in practice because they would not have cancelled their marriage through divorce proceedings. It is through these experiences the legislature sought to give new lease of protection to the new genuine partner.
Property Rights. If the legislature had not afforded such protection it would work in favour of the other party with a paper marriage certificate yet she would not have contributed to the accumulation of the property and in the circumstances such an injustice would cause hardships to the woman who contributed to the investment of the property. It would work an injustice and hardship on the woman who entered into a partnership and contributed towards the accumulation of property.
Prior to the new Marriages Act [Chapter 5:15], spouses with ‘paper marriages’ would surface on the dissolution of a civil partnership and in most circumstances as a result of death and then parades a marriage certificate insinuating that she is the surviving spouse. Definitely, this claim would only be correct on paper; but in real terms the claim would be baseless. It should be noted that what this woman had was a paper marriage and not a real marriage in practice. As it stands now, the recognition of civil partnerships at law, is a slap in the face to those who invest in ‘paper marriages’.
In light of the above averments, one would be tempted to posit that the new Marriages Act, in introducing the concept of civil partnership, is not cleansing or shielding small houses, side chicks and ben 10s as they would not qualify under the strict conditions set out in section 41 of the Act. With small houses or side chicks, usually the parties live separately without an iota of intending to form a family or even genuinely living together. It should be noted that adultery damages are still part of our law for now and all marriages are still under protection from small houses, side chicks and ben 10s as before.
Above politics, I believe the government, and the judiciary in particular, should be petted on the back for coming up with such a progressive piece of legislation as it has managed to be proactive in addressing the real legal challenges that were affecting people in Zimbabwe as could be seen by influx of such cases in our courts.
The writer is a Legal Practitioner, Notary Public and Conveyancer and can be contacted on email@example.com and also on all social media platforms @tatendanyoka.
•Disclaimer: Opinions are my own and not the views of my employer or the views of the publisher and should not be taken to be legal advice and one should seek legal advice and the writer will not be responsible for any action taken upon the reading of this article.