The ManicaPost
Trust Maanda
IN terms of the Marriages Act (Chapter 5:15) (the Act), there are certain types of recognised marriages.
The Act has introduced another type of cohabitation called civil partnerships.
The Act intended to protect rights of women who had hitherto been deprived of rights to division of “matrimonial” property on dissolution of unregistered unions, which were regarded as kuchaya mapoto.
Only those married in terms of recognised marriages were eligible for division of matrimonial property on divorce, using the criteria in the Matrimonial Causes Act (Chapter 5:13).
The criteria are now applicable at dissolution of civil partnerships.
To claim a share on dissolution, such women, before the Act, often times pleaded a common law cause of action of tacit universal partnership, provided they could prove it and met the choice of law criteria.
The burden to prove that their contribution to the acquisition of property and establishment of the partnership was difficult to discharge.
According to the Act, a civil partnership is a relationship between a man and a woman of over the age of 18 years; who have lived together without legally being married to each other; and have a relationship as a couple living together on a genuine domestic basis.
What a “genuine domestic basis” is has not been defined.
To prove the existence of their relationship as a couple living together on a genuine domestic basis, the Act provides for circumstances, such as the duration of the relationship; the nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence, and any arrangements for financial support, between them; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life; the care and support of children; the reputation and public aspects of the relationship.
The minimum duration of the relationship that establishes a civil partnership’s existence is not stated.
It is obscure what is meant by “nature and extent of their common residence”, “degree of financial dependence or interdependence”, “the degree of mutual commitment to a shared life”.
No one knows what “shared life” means.
The Act provides that “no particular factor in relation to any circumstance may be regarded as necessary in determining whether or not the persons concerned have a civil partnership.”
One, therefore, does not need to consider the factors, for example, the duration of the relationship, or the nature of their common residence, etc, to determine whether a civil partnership existed.
If the factors are not necessary, it is unknown what should be considered in order to find the existence of a civil partnership.
The meaning of“reputation and public aspects of the relationship” is vague.
If the members of the public perceive the parties to be in a civil partnership, then they are.
One who goes around publicising that someone is their partner, and posts them on social media as their lover, may establish, by that fact that they are in a civil partnership, because the reputation and public aspects of their relationship establish a civil partnership.
The meaning of“degree of financial dependence or interdependence” is imprecise.
If one pays school fees for the children of his or her lover, pay the lover’s rent and groceries,in a manner that shows that lover’s dependence, a civil partnership may be proved.
If a woman can prove that her boyfriend was paying for her hairdo and gave her financial support, to an extent that she can show that she was dependent on the man, then a civil partnership is established.
Likewise, if a woman provided the financial needs of the man.
Though sounding fanciful, it shows the imprecision of the provisions of the Act.
That raises speculation that the Act introduces small houses, colloquial for married man’s mistresses.
The Act has codified the concept of tacit universal partnership and relaxed its requisites.
On entering into a civil partnership, there is no need to agree on its requisites.
Their existence is proved at dissolution if the factors in the Act exist.
A married spouse who enters into a civil partnership while so married commits adultery.
A civil partnership by a married person is not a side hustle.
A civil partnership does not create a crime of bigamy.
The law does not prohibit a person from being in multiple civil partnerships.
A sexual relationship with someone’s civil partner is not adultery.
Adultery is committed with a person who is married in a monogamous marriage.
Civil partnerships are only valid for division of property between the partners on dissolution of the partnership.
While the intention of the Act is good, how civil partnerships will impact on the social mores of our society remains to be seen.
Trust Maanda is a legal practitioner. He writes in his personal capacity. He can be contacted on +263 772432646
