JENGWA v JENGWA 1999 (2) ZLR 121 (H)

Flynote

Customary law — marriage — polygamous marriage — divorce — property rights of wife being divorced — right of wife to claim share in marital property

Human rights — discrimination against women — application of United Nations Convention on the Elimination of All Forms of Discrimination Against Women — application to division of property on dissolution of customary law union

Headnote

The respondent and the appellant were married in an informal customary law union. They had several children from this union. The respondent had also married other women in customary law unions and had other children with these women. Only one of these other unions had been solemnised. After many years of marriage, and just before they separated, the marriage of the appellant and respondent was solemnised under the then African Marriages Act (now the Customary Marriages Act). Thereafter they were divorced according to customary law. The appellant claimed money and property from the respondent, including a fifty per cent share in the marital home.

Held, that as the customary union between the appellant and the respondent was solemnised the general law applies. In terms of the Matrimonial Causes Act [Chapter 5:13] the applicant is entitled to a division of the marital property on divorce.

Held, that as regards a customary law union that has not been solemnised, it may be problematic to use the concept of a tacit universal partnership to achieve an equitable division of property on divorce, especially where there is more than one wife. A finding of such a partnership must be based on the factual probability that both parties gave their actual, though unspoken, assent to the creation of the mutual rights and obligations forming a partnership. There is a danger of imposing upon the husband a state of mind which he did not have. Where a man has more than one wife, various questions arise, such as with which wife or wives such a tacit universal partnership was formed. Wherever immovable property is involved, a finding might be made that the general law applies, since custom, as it is presently understood, recognises no ownership of immovable property. (Where other types of property are involved the choice of law is to be made on other grounds, although the need to prevent gender discrimination may lead the court to decline to apply customary law to all forms of property.) It is unjust and promotes discrimination against a certain class of women to deny rights to immovable property to women in customary unions that are not solemnised. This is also contrary to Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women, which obliges member states to take all appropriate measures to eliminate discrimination against women in matters relating to marriage and to bring about equality between spouses in relation to matters such as ownership, enjoyment and disposition of property. The concept of unjust enrichment can be used as the basis for awarding the wife an equitable share in the immovable property where the wife has contributed to the marital wealth, either by making financial contributions towards the acquisition of property or by suppressing her income-earning capacity in favour of home-making and relieving her husband to accumulate capital. The wife's contribution impoverishes her in favour of communal enrichment and she risks future impoverishment in the event of divorce. Such a spouse also has an expectation of solemnisation of the marriage and a future claim under the Matrimonial Causes Act.

Held, further, that co-wives whose marriages are solemnised have unequivocal rights under the Matrimonial Causes Act and co-wives whose marriages are not solemnised have an interest capable of being protected where one wife seeks division of the property. The interest of the latter spouse may be based on tacit universal partnership, unjust enrichment or on an expectation of the solemnisation of their marriages. Thus, the potential rights of the other spouses must be taken into account where one wife seeks a division of property in which others expect to share.

Held, further, that the weight to be attached to the rights of the other spouses must vary from case to case. In some cases, it may be possible to identify a precise share attributable to a non-litigant spouse. In other cases, it might be impracticable to do other than modify the share of a litigant wife, reducing it from what a wife in monogamy might have expected, in order to protect the interest of the other wives. In some, it might even be proper to disregard the position of other wives on the basis that their rights are insubstantial in the circumstances. But in all cases, the competing interests of the non-litigant spouse or spouses must be considered. Although it is not necessary to join all wives in such proceedings, whenever a husband and one wife in a polygamous marriage dispute a division of marital property in a divorce, it is sound practice to serve process on the other wives.

Held, further, that in the original property division by the magistrate no account was taken of the existence of other wives with potential claims. Taking this into account and taking into account the contribution of the appellant to the household, but also factors such as the longstanding estrangement of the applicant and respondent prior to divorce, a fair apportionment would be to award the appellant a share of one third of the present value of the immovable property.