MAUTSA v KUREBGASEKA 2017 (1) ZLR 202 (H)

Flynote

Customary law — marriage — marriages not registered — breakdown of the marriage — whether general law or customary law should apply — need to ensure justice between the parties

Partnership — tacit universal partnership — husband and wife — how established — unregistered customary law marriage

Headnote

The parties were married to each other in terms of customary law; the marriage was not registered. There were four children, two of whom were adults and two were still minors. The plaintiff issued out summons in which he sought an order declaring that the marriage was of no force and effect, that he had guardianship and custody of the two minor children and a distribution of the matrimonial assets. The defendant denied responsibility for the breakdown of the marriage and blamed the plaintiff for that. She disputed the issue of guardianship and custody of the minor children and the proposed distribution of the assets claimed by him. She made a counter-claim, in which she alleged that the parties were in a tacit universal partnership, in terms of which the assets were acquired, and made a proposal of how they should be distributed. She asked for the guardianship and custody of the minor children, with the plaintiff being granted reasonable rights of access, and claimed maintenance in respect of the children. The plaintiff filed a response in which he denied that they lived a modern western type of life such as to warrant the application of general law principles to their union. He insisted that it was their intention that customary law would apply and so the defendant was only entitled to property that she would ordinarily be entitled to at customary law on divorce. On 16 October 2012 a pre-trial conference was held at which the issues for determination were captured. At the commencement of the trial, which was in 2016, because of the long period since the pre-trial conference, the judge sought clarification on the issues for trial which counsel duly provided.

Held, that the defendant did not make meaningful direct contribution to the acquisition of immovable properties or movables.

Held, further, that the first issue to determine was whether general law or customary law should apply. Having regard to the fact that the union lasted 14 years, to expect the defendant to move out with only umai mawoko property would be the height of judicial injustice. The circumstances of this case required that the general law should apply.

Held, further, that the requirements of a tacit universal partnership had been met, in that each party brought money, labour and skill into the partnership and that partnership was to be carried out for the joint benefit of both parties.

Held, further, that the finding that a tacit universal partnership existed did not translate to a half share as claimed by the defendant. However, she deserved a lot more than what was offered to her by the plaintiff.