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Reflection On Tacit Universal Partnership And The New Marriages Regime In Zimbabwe – Family Law



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It is apparent for some reason that the distribution of property
at the dissolution whereby parties are cohabitating or in an
unregistered customary law union has had a tenacious grip on courts
for a while now. Our very own courts have realized the injustices
visited upon women who are caught up in unregistered customary law
unions or cohabitation upon dissolution of property. This is
article will look at one of the remedies that one can use if
parties have been living together and feel they are entitled to
something.

In most instances, couples are living together and not legally
married. As they are living together they can probably venture into
acquiring properties, have children and assets. The problem
eventually comes when they decide to dissolve the union. So the
issue comes when both parties have to share the profits/assets and
in most cases women are disadvantaged during the distribution and
yet they would have directly or indirectly contributed.

In terms of article 16 of the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW),
to which Zimbabwe acceded, State parties are enjoined to:-

“take all appropriate measures to eliminate discrimination
against women in all mattersrelating to marriage and family
relations and in particular [to] ensure, on a basis ofequality of
men and women:

(h) The same rights for both spouses in respect of the
ownership, acquisition,management, administration, enjoyment and
disposition of property.”

Further section 26(c) of our Constitution provides that:-

“The State must take appropriate measures to ensure that
there is equality of rights andobligations of spouses during
marriage and at its dissolution;”

Tacit Universal Partnership;

Previously, in Zimbabwe, in order to find protection for women
in such unions courts had to rely on some suitable general law
principles, such as the Tacit Universal Partnership. Cohabiting
couples do not have the same automatic rights as married couples
under the law. If parties live together but don’t conclude any
form of agreement regulating their respective legal rights and
obligations, on dissolution of the cohabitation, a party that feels
he or she is entitled to something from the other party must go to
court, at some expense, to prove that entitlement. To do so, the
party had to prove that they were in a ‘Tacit Universal
Partnership’, so that one party is entitled to certain property
and assets of the other party, on separation. In this regard the
courts would have to determine if a Tacit universal Partnership
existed between the parties.

This type of partnership was usually entered into without
specification of its nature, which sometimes could constitute
common enjoyment of any other partnership of profits. However a
husband and a wife cannot enter into a universal partnership with
each other .A Tacit Universal Partnership would therefore be
constituted by a couple that is cohabitating or in a civil
partnership and not legally married.

Now, according to the new Marriages Act [Chapter 5:15] the law
has codified the position by introducing a civil partnership and
recognizing an unregistered customary law union as a marriage. In
terms of section 41 of the Act, parties 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

The circumstances referred to in may include—;

  1. the duration of the relationship;

  2. the nature and extent of their common residence;

  3. whether a sexual relationship exists;

  4. the degree of financial dependence or interdependence, and any
    arrangements for financial support, between them;

  5. the ownership, use and acquisition of their property;

  6. the degree of mutual commitment to a shared life;

  7. the care and support of children;

  8. the reputation and public aspects of the relationship

Both parties should be above the age of eighteen years; should
have lived together without legally being married to each other,
should not be within the degrees of affinity or consanguinity and
having regard to all the circumstances of their relationship, have
a relationship as a couple living together on a genuine domestic
basis.

Whilst the efforts by Parliament in providing relief to such
women maybe commendable, women ought not to be ignorant. A
definitive remedy has been provided by changes in the law
pertaining to the rights of parties at the termination of such
unions. Our law has long recognised contribution as including
indirect contribution even by looking after the family and
performing domestic chores. Where a party’s contention is that
what he acquired was for himself alone and not to be shared would
simply be a perpetration of the discrimination against women. The
purposes of distribution of assets acquired during the union would
go a long way in eliminating discrimination against women on the
basis of the type of marriage contracted.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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