In 2022, the Marriage Act [Chapter 5:11] and Customary Marriages Act [Chapter 5:13] were repealed and replaced with the Marriages Act [chapter 5:17]. This new Act recognizes four (4) types of marriages which are civil marriages, registered customary marriages, unregistered customary law unions and qualified civil marriages. This article will not focus on qualified civil marriages but the other 3. Interestingly, this new Act introduced civil partnerships and is silent about adultery and adultery damages. It is important to first have an understanding of the types of marriages recognized in Zimbabwe in terms of the Marriages Act [Chapter 5:17].
TYPES OF MARRIAGES
- A civil marriage is a monogamous is a marriage which mandates either of the parties to have one spouse. Once contracted this marriage, one cannot enter into any other forms of marriage except the civil partnership.
- A registered Customary Law Union is a potentially polygamous marriage meaning one husband and potentially many wives. A man can have one wife or more. However, a registered customary law union can be upgraded to a civil marriage.
- An Unregistered Customary Law Union (UCLU) is a potentially polygamous marriage meaning one husband and potentially many wives and in terms of section 17(1) of the Marriages Act [Chapter5:17], an UCLU should be registered within 3 months. Upon registration an UCLU upgrades to registered customary law marriage.
According to section 41 of the Marriages Act [Chapter 5:17], a civil partnership is a relationship between a man and woman who are both over the age of eighteen years and have lived together without legally being married to each other and are not within the degrees of affinity as provided in section 7 of the Marriages Act [Chapter 5:17] and having regard to all circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis shall be regarded as being in a civil partnership for the purposes of determining the right and obligations of the parties on dissolution of the relationship.
WHAT IS ADULTERY AND ADULTERY DAMAGES
Adultery is the sexual intercourse between a man and a woman where one of them or both are married to someone else.[1] Adultery damages are claimable to compensate an innocent spouse for loss of consortium for example love, affection, companionship etc. and for contumelia that is, the injury suffered by the innocent spouse. In the recent case of Shamu v Taderera HMA 01-23, it was made clear that in Zimbabwe adultery damages are still relevant and remain unaffected by the introduction of civil partnerships. Adultery is still regarded as a serious threat to marriage institution by third parties.
The rationale for the continued regulation of adultery is to protect the marriage but it clearly does not work towards that goal. Marriage is regarded as a sacred contract entered into by two willing parties and it is the sanctity of this union that the delict of adultery seeks to protect. Mwayera J in Njodzi v Matione[2], stated that a marriage is a human institution, which is regulated by law and protected by the Constitution. It is respectfully submitted that adultery laws do not necessarily protect the marriage. Love, trustworthiness, respect and faithfulness form the strong foundation upon which a lasting marriage relationship can be built not the laws.
S Chirawu buttresses the above reasoning by saying,
“The million-dollar question is whether adultery damages restore a marriage and the answer seems to be a no because the court action and damages target the third party. A wife cannot sue her husband for adultery and otherwise but they can only sue the person with whom their spouse has committed or is committing adultery with. Perhaps it is time to look for adultery as more of a social problem that law can do little to cure. Parties should be encouraged to work on their marriages.”[3]
One can safely say that, adultery damages are no longer necessary to protect the marriage institution especially after recognition of civil partnerships. The recognition of civil partnerships is a clear infringement to the marital union. A civil partnership is a relationship between a man and a woman staying together as husband and wife without payment of lobola. This covers cohabitation and other extra marital relationships commonly called small houses. A person in a monogamous marriage can now contract a civil partnership and such partnership can be recognized for determination of rights upon dissolution. Why would one then be punished under adultery laws when such partnership is recognized upon dissolution and sharing of assets acquired during the subsistence of the partnership?
In some other jurisdictions, this delict has been done away with for example in South Africa and England. See the case of DE v RH[4], where the South African Constitutional Court held that, it is not reasonable to attach delictual liability to adultery and adultery damages were outlawed.The reasons that have been advanced to support this notion are that they target a third party rather than the chief architect of the adulterous relationship and this has been considered to be unconstitutional, adultery intrudes into a person’s most intimate relationship, it violates the adulterous spouse’s rights to dignity, privacy, freedom of association and security of person.
Apart from that, customary marriages are the most prevailing type of marriage in Zimbabwe and they are still recognized under the Marriages Act [Chapter 5:17]. This type of marriage allows a man to have more than one wife but not the woman to have more than one husband. Only the husband has the right to sue for adultery and this right is not accorded to the wife. In the case of Mukono v Gwenzi[5], a woman was married in terms of the Customary Marriages Act and the woman had successfully claimed damages against a woman who had committed adultery with her husband. This decision was reversed on appeal and the court held that a marriage under the Customary Marriages Act is potentially polygamous and a woman is not entitled to claim damages against a woman who has committed adultery with her husband. Also, in Carmichael v Moyo,[6] a man in an unregistered Customary Law Union successfully claimed adultery damages against a man who had committed adultery with his wife. It is then questioned as to how practical the application of adultery damages maybe in a densely polygamous society. This allows men sexual freedom and not women. It is therefore discriminatory as it works against women.
Despite the significant changes to make adultery laws gender neutral, the rational for the current adultery laws stem from the same archaic gender norms that are no longer justifiable in this 21st century. The society expects a woman to react to an adulterous husband with kindness, if they do not, they are seen as uncontrollable. The responsibility of a husbands’ infidelity in many cases falls on the wife. A woman whose husband commits adultery is instructed to look at how her own actions may have contributed to his behavior. Women are taught to be patient and to endure their husbands’ adultery. The effect of these social and cultural implications is a disparity between how society views women and men who commit adultery.
The Constitution of Zimbabwe provides for equality and non-discrimination. Section 56 provides for equality before the law and subsection 3 prohibits discrimination based on sex. However, there is a lot of inequality between men and women and a high degree of discrimination against women in adultery laws.
Section 176 of the Constitution clearly states that our superior courts have the power to develop the common law taking into account the interests of justice. It is high time that our courts develop jurisprudence in this area of law. Adultery laws are largely drawn from common law. Zimbabwe is a developing country and there is a changing attitude towards adultery. It is no longer viewed with strong aversion as it was before. Societal morals have changed and continue to evolve. Gubbay ACJ (as he then was) in Zimnat Insurance Company Limited v Chawanda[7], stated that,
‘Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But at the same time if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions.’’
In conclusion, as it currently stands adultery damages are still part of the Zimbabwean law but one can safely say adultery laws are no longer relevant and are unconstitutional and usually discriminatory against women offenders and women whose husbands’ commit adultery. Some jurisdictions such as South Africa have since done away with adultery claims. It is high time that the judicial officers should be gender sensitive so as to reflect women’s interests and needs to improve their status and bring equality in these issues. Women must be aware of their rights, even if they are involved in the adultery storm they are still entitled to the protection of the law, to equal treatment and to their privacy. Society should not interfere with these rights.
[1] S Chirawu, ‘The Roving Eye and the law’. The Sunday Mail.14 September 2014
[2] HH 37/16
[3] S Chirawu (note 1 above)
[4] 2015 (5) SA 83 (CC)
[5] 1991(1) ZLR 119
[6] 1994(2) ZLR 176
[7] 1990(2) ZLR 143 (S)