MURINGANIZA V MUNYIKWA 2003 (2) ZLR 342 (H)

Flynote

Customary law — marriage — formalities required — strict adherence to c ritual not essential — undissolved previous marriage under Marriage Act — second marriage void — division of matrimonial property

Family law — customary marriage — marriage null and void on the grounds that it was bigamous — woman unaware that marriage bigamous — court may nonetheless order division of matrimonial property

Headnote

The defendant married the plaintiff under customary law, having been told by him that his previous marriage had been dissolved. In fact it had not been dissolved. The parties' customary law marriage was not registered. They setup home and had a child. She contributed financially to the acquisition of their home. The parties became estranged and separated. The plaintiff sought the eviction of the defendant from the home. He claimed that there e was no customary law marriage because roora had not been paid and because the marriage to his first wife subsisted.

Held, that in customary law, strict adherence to ritual formulae is never absolutely essential for the validity of a marriage. There was evidence that roora had been paid, though not in the normal way.

Held, further, that in such cases, customary law should apply unless the justice of the case demands otherwise. As a claim for division of the matrimonial assets was not recognised under customary law, the general law should apply. If customary law were to apply, then it would not be possible to extend any relief to the defendant beyond her traditional entitlements of umai or mavoko property. In the circumstances, this would have been unjust.

Held, further, that because the plaintiffs first marriage had not been dissolved, the marriage to the defendant was bigamous. Nonetheless, in these circumstances the court could divide the property in terms of s 7 of the Matrimonial Causes Act [Chapter 5:13], and thus the claim for ejectment must fail.