MAKOVAH v MAKOVAH 1998 (2) ZLR 82 (S)

Flynote

Customary law — marriage — C registered customary marriage — undissolved previous marriage under Marriage Act — second marriage void — division of matrimonial property

Headnote

The appellant had married a woman in a church wedding. Subsequently he had purported to enter into a customary marriage with the respondent in terms of the then African Marriages Act [Chapter 238] (now the Customary Marriage Act [Chapter 5:07]). In the marriage certificate for this marriage, the respondent was described as the appellant's first wife. The trial court decided that the marriage between the appellant and the respondent was null and void on the grounds that it was bigamous. The trial court ordered a division of the matrimonial property acquired during the marriage before it was annulled. On appeal:

Held, that when the respondent married the appellant she was unaware that the appellant was already married to another woman. On the other hand, the appellant was fully aware that he had already married another woman in church and that the subsequent registered marriage would therefore be bigamous. The second marriage was null and void on the grounds that it was bigamous.

Held, further, that as regards the division of the matrimonial assets of the annulled marriage African customary law knows no concept of putative marriage and to introduce the common law concept of putative marriage into customary law is to distort customary law. However, that when the court has declared a marriage to be null and void the court is empowered by s 7(1) of the Matrimonial Causes Act [Chapter 5:13] to order the division of the spouses' property and it is not necessary to find that the marriage is a putative marriage in order to do this. This provision applied in the present case. If this were not the case it would work an injustice and hardship on a party, such as the respondent, who had laboured during the marriage and had contributed to the accumulation of the matrimonial property under the impression that the marriage was valid. It would also unjustly enrich a dishonest party such as the appellant, simply because the property in question is either registered in his name or is under his control. Such a position would be unconscionable and the legislature by using the expression "nullity of marriage" in s 7(1) of the Matrimonial Causes Act must have envisaged that a situation such as the present one would be covered. Such situations are very common in African society because of the failure by many to realise that once they contract a "church" marriage their marriage becomes monogamous.