The new Marriages Act (Chapter 5:15) came into operation this year, 2022.
One of the most notable changes brought by the Act is the unification of the marriage laws in Zimbabwe.
Previously, marriages in Zimbabwe were governed piecemeal.
Following the promulgation of the new Act, all marriages are governed under one roof.
The new Act thus recognises a civil marriage, a registered customary law union, unregistered customary law union, and a qualified civil marriage.
I will deal with these in my article next week.
It is also noteworthy that “Civil Partnerships” are also introduced for the first time into our marriage laws under section 41 of the Act.
Some section of our society has interpreted a civil partnership as a form of marriage, however in actual fact, the Act is not closer to classifying it as any form of the recognised marriages.
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This article deals with civil partnerships as introduced in the new Act.
Section 41 of the Act provides that a civil partnership is -
“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…”
Section 2 of the Act provides that the existence of a civil partnership shall be established on the basis of the above criteria.
The new Act is clear that the term “civil partnership” is only used for the purposes of determining the rights and obligations of the “civil partners” on dissolution of the relationship and, for this purpose, the courts are enjoined to apply the same legal principles used on dissolution of a civil marriage when determining the property or other rights of the parties involved.
It appears then that chiefly, the lawmaker introduced civil partnerships to enable parties to be recognised for distribution of property acquired during existence of such relationships.
A lot of talk is being witnessed on the meaning, scope and implications of the concept of civil partnerships, and the extent to which it relates, compliment or offends, if any, the recognised forms of marriages under the Act.
History of civil partnerships, and existence elsewhere
Collins online dictionary defines a civil partnership as “a legal relationship between two people that is similar to marriage.”
The meaning resonates well with Macmillan online dictionary which simply puts it as “legal relationship similar to marriage”.
I agree with the definitions. Two things are clear from both definitions above:
That though, a civil partnership resembles a marriage, it is not a marriage at all, and;
It is a relationship recognised at law.
The concept of civil partnerships is not new in the world.
By the year 2004, Canada had legally recognised civil partnerships for same sex relationships through the Civil Partnership Act, 2004.
Britain followed in 2005 to confer same legal recognition on similar relationships.
Pursuant upon these developments both countries extended the same recognition to opposite sex couples.
A couple of other jurisdictions have adopted the concept of civil partnerships into their laws.
What is unique, however, in our new marriages Act in Zimbabwe is that a civil partnership does not need to be registered as envisaged in other mentioned countries.
Thus under our law, a civil partnership exists once the relationship satisfies the prescribed requirements mentioned above.
Meaning and existence of a civil partnership
This is the most boggling part, however, I will try as much as I can to demystify the concept of a civil partnership.
As already pointed out, a civil partnership is a not a marriage, however it has characteristics of a marriage.
For a relationship to be classified as a civil partnership, it must satisfy the requirements that I have already alluded to; namely that there must exist adults who are in an opposite sex relationship, living or having lived together without being legally married to each other, not being closely related, and looking at their relationship, they have a relationship akin to a couple living together on a genuine domestic basis.
The last part of the definition of a civil partnership under section 41 (1) (d) of the Act is definitive of what constitutes a civil partnership. It reads as follows:
“…having regard to all the circumstances of their relationship, (they) have a relationship as a couple living together on a genuine domestic basis…”
It appears that a civil partnership is recognised as such for parties who have lived akin to husband and wife as a couple living together on a genuine domestic basis.
It is clear that where a couple lives together, it is not sporadic or intermittent or sometimes.
There must be a degree of predictability, consistency and habitual.
Again, the phrase “genuine domestic basis” connotes effortless genuineness.
It appears that the test is objective having regard to what the parties do to each other reciprocally, give and take from each other, the concern they show for each other, the time they spend together, the planning and execution of plans, the family they upbring together among other things.
The definition of a civil partnership in section 41 of the Act appears to envisage a stable as opposed to a fly-by-night relationship.
The Act seems to suggest a more formalised and genuine relationship as opposed to a temporal informal engagement. Be that as it may, the major question seems to be whether, there is a relationship similar to a couple living together on a genuine domestic basis?
Rationale for ‘civil partnerships’
It has been correctly said that civil partnerships are only recognised for the purposes of division of property upon the termination or dissolution of the relationship. More often than not the weaker party would walk out of the relationship having been deprived of their property and other rights.
Thus the new Act provides that upon termination of such a relationship, any property or assets acquired by the parties during subsistence of their relationship will be distributed by the courts in the same way that property is distributed upon the granting of an order for divorce in a civil marriage.
It is clear now that a civil partnership is a relationship of a man and a woman staying together as a couple on a genuine domestic basis without payment of lobola, or any ceremony or registration – parties will be cohabiting, and it does not matter whether one of the parties to the relationship is formally married to a third party.
A civil partnership also appears to apply to a bachelor and spinster living together in similar circumstances.
Thus from a totality of all facts, it appears that the overriding factor is that the parties are living together as a couple on a genuine domestic basis.
Looking at the description in section 41, there is a possibility that most so-called “small houses” may not qualify as civil partnerships where the “living together” is not regular or consistent, or where the “genuine domestic basis” is lacking especially where the relationship is transactional.
Thus it is possible to avoid creation of a civil partnership by destroying the growth of positive factors.
In essence, the section appears to apply to such genuine civil partnerships.
Potential effect on civil marriage spouses
Section 41 (5) provides that upon termination of a civil partnership a court that is tasked to distribute the property of the civil partnership, must especially pay attention to the rights of the spouse of a civil partner. A few scenarios could exist;
All property proved to belong to a civil partner’s spouse shall not be affected on dissolution of the civil partnership,
Where a civil partnership started almost same time with the marriage of the civil partner, then it may be accorded better of lesser property rights depending on contributions of the civil partner to either sides.
The law is not clear on the rights of a civil marriage spouse of a civil partner to sue the third party for seduction damages. In my opinion, the rights have not yet been taken away by introduction of civil partnerships. I am strengthened in this view by the fact that should this been the intention of the lawmaker, it should have been specified clearly. For a greater reason, a civil partnership is not a marriage in itself, it was only introduced to cater for those relationships where women were disadvantaged upon dissolution and property sharing.
This article is not meant to be legal advice or exhaustive in the meaning of the concept. It merely guides the public and or experts on the meaning of civil partnerships. In my next article, I will look at the different types of marriages in the new Act and their legal standing.
*Alex Majachani is an attorney and principal partner at Alex F and Associates Attorneys. He can be reached on [email protected] or +263774807058.