ELIZABETH Mabhena (57) from Bulawayo’s Mzilikazi suburb said her world completely changed the day her husband, Edward Moyo, died.
She said a month after the funeral; her husband’s relatives stripped off her dignity and the very basic need to grieve when they swooped in and took everything, including her only sewing machine which she intended to use as a dress maker to support her five children.
Elizabeth and Edward were customarily married for 17 years.
“I felt guilty for being the one who is still alive. At some point, I felt angry at my spouse for leaving me. My husband’s relatives stripped me of my dignity when they took all the property I worked for with him for the 17 years we had been customarily married. They harassed me, calling me all sorts of names saying I must prove that a customary marriage really existed between us,” a teary Elizabeth shared her agony with B-Metro.
Elizabeth’s case is a graphic representation of the plight of many women and children who are being denied inheritance rights, particularly when the existence of a customary marriage is denied by courts and in-laws after death or divorce.
In these cases, the woman who claims to have been married to the deceased is usually constrained by courts and his relatives to prove that a customary marriage existed before the distribution of the estate can be addressed.
Property stripping is a common traumatic experience for many widows in Zimbabwean communities and beyond where every time a man dies a woman is caught between countless challenges for the remainder of her life. Property stripping implies “depriving a widow of acquired or inherited movable or immovable possessions that rightfully and legally belong to that person”.
Amid the ongoing and raging debate on the civil partnership clause that was removed by Cabinet in the Marriages Bill, some legal experts believe the clause could have been a welcome development for women in customary marriages and children born out of wedlock as it was intended to place all marriages and children at par.
Cabinet, however, withdrew that clause in the Marriages Amendment Bill that provided for “civil partnership”, saying such a union was alien and not consistent with the country’s cultural and Christian values.
Section 40 provides as follows: “A relationship between a man and a woman who — (a) are both over the age of 18 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.”
Speaking during a consultative meeting which was recently held in Bulawayo, Mr Thabani Mhlanga said the removed clause should be brought back as it was essential in protecting those in unregistered marriages.
“This is because justice demands that the woman who claims to have been married to the deceased must prove that a customary marriage existed before the distribution of the estate can be addressed.
“Another issue is that for those parties in customary union when their marriage has broken down, the parties especially women are not put in equal position with men to avoid them falling into destitution,” said Mr Mhlanga.
From his interpretation the removed clause was a big blow to children born out of wedlock and to women who are customarily married as they usually face challenges in enjoying their inheritance rights in the event of a divorce or death of the husband. In a contrasting thought,
Ms Beauty Mangena, disagreed, saying the country’s laws should only recognise one man one woman marriages and punish those who have relationships outside marriage.
“We grew up in a society that believes in a one man one woman union and our children have been taught the same thing.
“That section should be totally removed because we’ll live like animals. We can’t allow that in our communities,” said Ms Mangena.
Although residents expressed confusion and mixed feelings over the revoked civil partnership clause, some legal experts believed it was progressive saying it attempted to accord property rights to all women and brought equality to all unions whether registered or unregistered.
Attorney General Advocate Prince Machaya said the clause was being misunderstood and misinterpreted to create the impression that the law was recognising civil unions.
“It is not a recognised marriage; it was merely out of consideration of fairness that when these people move apart the one who is more economically empowered should not use that power to the detriment of another part that was the sole purpose of referring to it as a civil partnership.
“Most people interpreted this section wrongly resulting in it being struck off. But we are saying this section was intended at trying to protect those in unregistered marriages and not necessarily small houses. We must understand that most of those who are in unregistered marriages are there not out of choice,” said Adv Machaya.
A senior legal practitioner in Bulawayo, Nikiwe-Ncube Tshabalala said the section should be brought back and be amended so that parties in civil partnerships benefit from fruits of their hard labour especially where parties have minor children or have accrued property.
“Now the outcry should be from legal minds to push the legislature to bring back Section 40 and amend it so that parties in those unions (civil partnerships) can benefit from the fruits of their hard labour especially where parties have minor children or have accrued property.
“I must state that cohabitation has been in existence for a long time and our laws generally do not recognise it as a form of marriage although parties in cohabitation may have accumulated property during that period they will be staying together.
“Problems always arise in the cohabitation just like in civil marriages where termination of relationships can either be by voluntary termination or by death or by law,” observed Tshabalala.
She, however, said the source of the outcry was when the legislature interfered in the marriage contract by taking away its sanctity and equating its rights to those that were going to accrue to the civil partnerships.
“The major challenge that led to the outcry was when the legislature sought to bundle up marriage into one Act of Parliament. Chapter 5:11 marriage should have been left to enjoy the rights accruing to it without accompanying it with any other type of marriage.
“This is because many citizens of the country willingly got married under the Marriages Act Chapter 5:11 because they wanted to be in monogamous marriages and enjoy all the rights and privileges that are legally afforded in the civil marriages,” she said.