“Just living together”: An analysis of rights and obligations of women in cohabitation when such relationships break down: A case study of Mufakose and Marimba suburbs in Harare
Moyo, Letticia Fadzai
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“Just living together’ or cohabitation in Zimbabwe is a non legislated area in Zimbabwe. Cohabitation is neither recognized as a form of marriage in Zimbabwe nor is there a specific law that protects the rights of persons in such unions, yet it is increasing and has become common There lacks adequate legal framework on how the courts should distribute property for persons in cohabitation. The silence of the law has affected women as they tend to lose out on sharing of property. Our courts have therefore resorted to general law principles such as tacit universal partnership, unjust enrichment and joint property to resolve property disputes of persons in cohabitation unions. These principles are difficult for women to prove in court which usually results in them being taken advantage of. The writer was motivated to do this study from the Second Semester’s Family Law and Social Realities course during the Masters in Women’s Law programme 2015 -16 .She realized that in the area of family, marriage has been discussed a lot neglecting other forms of family that have emerged. The writer being a lawyer in the Ministry of Justice and Parliamentary Affairs and having worked for the department of Constitutional and Parliamentary Affairs for several years is strategically positioned to influence the alignment of marriages laws to the constitution as well as total reform of such laws. The methodological framework was informed by understanding how women are discriminated upon termination when their property rights are not protected. To investigate the lived realities of woman in cohabitation relationships, she started by interviewing women using the women’s law approach which explore the connections between law and gender and which are sometimes hidden and identify the bias involved, her main objective being to expose the inadequacies of the current legal framework. She also employed the Grounded approach where she engaged with empirical knowledge and the data she managed to collect on women’s lived experiences on law and sharing of property disputes upon dissolution of cohabitation unions are resolved. As she incorporated her findings into the legal framework, it became apparent that the Zimbabwean legal framework is inadequate and it exposes women in cohabitation unions to discrimination as their property rights are violated at dissolution of such unions. The sex and gender analysis also assisted her to get the masculinity voice and understand how men view cohabitation and investigate how they would want the law to regulate such unions especially when it comes to distribution of property at separation. Both men and women suffer because of this uncertainty but women suffer more. In order obtain data the writer had to use less structured in-depth interviews. Her major findings revealed that certainly there is no clear law that can be used by our courts to distribute the property of persons in cohabitation when such unions break down. It becomes a paradox when women in cohabitation are being discriminated when Zimbabwe has one of the best and modern constitutions that prohibit discrimination on the basis of marital status under section 56. Maybe it is high time we consider the scope and meaning of discrimination on the basis of marital status in Zimbabwe. Does section 56 imply that the matrimonial causes act should apply to all marriages and unions that exist in Zimbabwe? Having done this research and in the light of other decided cases on cohabitation, it looks like we have to recognize cohabitation and protect the property rights of women in such unions, but obviously there are problems that must be anticipated in trying to operationalise this. Variety of attitudes towards cohabitation is apparently going to persist but policy makers should not fail to pay attention to the voice of increasing number of women who find themselves in cohabitation families. The fact that women in such de facto unions have their property rights not protected under law is tantamount to discrimination. Zimbabwe is a party to many international conventions that protect women from discrimination and Zimbabwe should honor its international obligations. A constitutional challenge as was with the Mudzuru and another v Ministry of Justice Legal and Parliamentary Affairs CC12/15 case on child marriages, highlighting the paramount provisions of the constitution that provide that all persons are equal before the law and have the right to equal protection and benefit of the law, every person has a right not to be treated in an unfairly discriminatory manner on grounds marital status ,and that every person has the right to access the courts or some other tribunal or forum established by law for the resolution of any dispute, will declare that women in cohabitation unions need to be protected as well under the law just like everyone else in Zimbabwe. Test case litigation to define what is meant by discrimination on the basis of marital status would also help in determining the contemporary scope and meaning of marital status discrimination in this new constitutional era. The writer would advocate for a wider interpretation that would not only protect people from discrimination because they are married or unmarried, but would also protectpeople because they are in non- marital relationships.