MULEYA v MULEYA 2011 (2) ZLR 151 (H)

Flynote

Court — magistrates court — jurisdiction — distribution of matrimonial property following divorce — court having jurisdiction only over registered customary law marriages — no jurisdiction to order distribution in respect of unregistered union

D Customary law — marriage — unregistered customary law marriage — division of property following termination of marriage — magistrates court not empowered to distribute matrimonial property — claim for share of estate must be based on other recognised causes of action

Family law — husband and wife — divorce — division of matrimonial property following divorce — unregistered customary law union — how division of property may be determined — need to plead recognised cause of action

Headnote

Unregistered customary law unions are not recognised marriages in our law and as such s 7 of the Matrimonial Causes Act [Chapter 5:13] does not apply to them. While the courts have always been willing to assist women who are married in terms of an unregistered customary union and would readily divide property acquired during the subsistence of an informal union, that can only be done where well-founded claims for a share of the estate are made and a proper and recognisable cause of action is pleaded and certainly not on the basis of the union per se. G Section 11(b)(iv) of the Magistrates Court Act [Chapter 7:10] allows magistrates to preside over divorce cases of persons married under the Customary Marriages Act [Chapter 5:07] but it has no application to unregistered customary law unions. The existence of an unregistered customary law union does not, on its own, clothe the magistrates court with jurisdiction to distribute the matrimonial property, the union not being a marriage. Other recognised causes of action, such as joint ownership, tacit universal partnership, unjust enrichment or equity, should be pleaded.