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Marriages, Marital Rape and HIV/AIDS
GAD Talk Bulletin, Volume 6
Zimbabwe Women's Resource Centre and Network (ZWRCN)
October 31, 2002

Types of marriages in Zimbabwe
There are three types of marriages in Zimbabwe that can be classified as follows

• Unregistered customary law union
• Registered Customary Marriage
• The civil marriage

Unregistered customary law union
This marriage or union is not fully recognized by the law as a proper marriage except for a few purposes such as maintenance of the wife, or ex-wife and children and rights of children to inherit, rights of guardianship and custody. There is no marriage officer involved in creating this union. The man pays lobola to the girl’s father and depending on tribe or group involved the girl is taken to the man’s home after the payment of lobola.

There are no property consequences to this type of marriage. If parties separate they are each entitled to their own property. If parties wish to separate they do not need and cannot get a divorce. Unregistered customary law unions recognize maintenance of children and their ability to inherit from their father’s estate. The spouse will however have to depend on the cooperation of her husband’s relatives to inherit from his estate.

Registered Customary marriage
This marriage is obtained from a community court before a marriage officer. The bride and bridegroom and two witnesses have to be present at the ceremony. Customary law governs property rights. A divorced wife can take what she purchased with her own money, or property given to her personally. If a husband dies without leaving a will his wife will inherit nothing.

Under customary law the father of the male spouse or if he is deceased, another male relative is made guardian of children less than 18 years of age. Mothers are now being named guardian if it is in the best interests of the children. While husband and wife live together, they share the custody of the children.

Divorce is granted where there is irretrievable irrecoverable breakdown of the marriage, when either of the spouses becomes mentally retarded or continuously unconscious. Divorce is obtained from the community courts.

The husband may marry additional wives. Customary Law marriages are governed by the Customary Marriages Act (Chapter 5:07), which is administered by the Minister of Justice, Legal, and Parliamentary Affairs.

Civil Marriage
This type of marriage involves the couple having to go to the magistrate’s court to register their marriage and get a marriage certificate in the presence of two witnesses and a marriage officer. A registered Minister of religion can also issue a marriage certificate to a couple wishing to register their marriage. All property acquired during marriage become jointly owned and upon divorce it is shared equally between the two.

The husband is the natural guardian of the children in consultation with the wife. Civil marriage is governed by the Marriage Act (Chapter 5:11), which is administered by the Minister of Justice, Legal, and Parliamentary Affairs.

Marital rape and HIV\AIDS
The whole debate over sexual power has soared to new heights of controversy and confusion with publicity about marital rape. First was the horrific reality of violent rape, and then there was the recognition that not all rape involves violence. There can be subtler ways men can use to get sex when they want it.

There is growing a understanding that just because a woman agreed to marriage, the ceremony itself does not give automatic consent in advance for sex whenever and wherever the husband demands it.

It is every woman's right to have sex and say no to it, if she doesn’t want especially with the prevalence of the AIDS pandemic. However this area is still confused in law with a recent case of a man cleared after raping his wife 2 days after she said yes in the US (Rising Price of Love, Hodder, 1995) Every woman needs to have more information on HIV infection and AIDS and how she can protect herself from getting it.

Below are facts, which Women AIDS Support Network (WASN) came across from the research they conducted on gender and HIV/AIDS.

• About half of total populations of adults with AIDS are women.
• Women become infected at a much earlier stage than men become, often before they have completed their families.
• Many of the women infected are very young and still teenagers.
• A quarter of all the AIDS cases are children under the age of 5 years born of a woman who is HIV positive.
• Women are the caregivers for the sick at home.

From the research carried out by Dr K Dehre in 1990 in the Karoi District for WASN. Out of a sample size of 887 symptomatic HIV positive individuals, 511 were women only 376 were men. This could be due to higher utilisation of health facilities by women.

According to the Russian Federation Family Code 67% of the total rapes are committed by close acquaintances, 47% of cases are domestic violence related, ending with pressure to come into sexual relationship and 38% are incest.

There is need for:

• Prevention of AIDS proliferation
• Legal support of measures for prevention and struggle against AIDS
• Development of a system to inform women of AIDS prevention measures
• Ensuring the safety of medical treatment with immunity related drugs, epidemiology and prevention of AIDS.

Marriage laws - who are they protecting?
By Thembile Phute

Sekesai Matakaire of Nyazura was a second wife to Mr Tapfuma married under customary law and has two children. Mr Tapfuma’s first wife was married under chapter 2:58 at the Magistrates courts. Mr Tapfuma had other children with the first wife and a house in town.

In 2001 Mr Tapfuma died was involved in a car accident, hospitalized and eventually died from the injuries sustained in the accident.

When the property was shared Sekesai was left in the cold, even her children did not benefit from the estate. "Amaiguru in town got everything including the house and my children did not get anything," she says.

These are the everyday stories, which women in the rural and urban areas are sharing at the meeting spots like saloons, work, entertainment places and political meetings. The women who are ignorant of the marriage laws and the provisions of each, normally feel cheated.

What Sekesai did not know is that it is illegal for one who is married under chapter 2.58 to legally marry a second wife. She still feels bitter that the in-laws accepted her at the rural home but could not assist her to get benefits from the estate. Mr Tapfuma had paid "Matsvakira kuno", suit and dress for Sekesai’s mother but their marriage was unregistered.

Zimbabwe Women’s Resource Centre and Network held a Gender and Development Talk on "Marriage Laws, Marital Rape and HIV/AIDS" in October and a Lawyers’ representative said "All women who enter into customary law marriage cannot sue their husbands for adultery but the husbands can sue the wife"

Men have their own views about marriage laws and registration of marriages. Panashe Mtutwa from Rusape is aware of the customary and civil court marriage but has been staying with a woman for five years and does not have either certificate.

To Panashe, there is nothing called marital rape. He felt that what happens in married people’s bedroom is not for public discussion and was not comfortable in discussing the issue.

When asked why he has not registered the union he says, " the in-laws normally dictate to the mukwasha when they can register the union, I have not paid much of the lobola, until I do so, the in-law would not allow me to register the union.

Lynnette Hamadziripi a teenager felt it is very unnecessary for the law to demand these marriage certificates in the event of the husband dying. " If people stay together for years and there is no marriage certificate but lobola is paid that should be a legal marriage at court of law."

She further goes on to say that her mother works for the Women’s Action Group in her home area, she told her that she has come across instances were women have lost out everything after so many years of marriage because they are in unregistered customary unions.

Lynette wishes to be married in civil court when her time comes. She says,

" Customary law marriage is dangerous, property can be taken and the woman risks being chased out of the home and the husband can marry many wives."

The people interviewed above did not consider marital rape an issue. They all felt the men had the upper hand in a home especially when lobola has been paid in full. This brings to the fore the realization that gender awareness has not reached certain sectors of the society, women still feel they have to be submissive to the spouse even if it is against one’s wish to be intimate at a given time.

The lack of gender awareness and realization of violation of one’s rights is contributing to the high rate of HIV/AIDS infection in Zimbabwe. Women find themselves in relationships where they are not able to make a decision on condom use or denial of conjugal rights in a relationship in which one of the spouses is not faithful.

Cultural norms and values still guide our daily activities in Zimbabwe and Chief Makoni District in Manicaland is one area where traditions and cultural traits are still very strong.

Acknowledgements
The Zimbabwe Women’s Resource Centre and Network is grateful to all it’s development partners for the support they provide to our activities’

• EZE
• HIVOS
• ZADF/PACT
• KELLOGG FOUNDATION

We would also like to thank the following:

• Barbara Dembedza (Director - WASN)
• Val Thorpe (Director - VERITAS)
• Tsitsi Mariwo (Law Officer with Ministry of Justice)

Questions and suggestions from the GAD talk

• Whose responsibility is it when one talks about HIV/AIDS?
• Are young girls empowered enough to make the right informed decision?
• What are the women saying about marital rape?
• Biblically we should not deny conjugal rights to one another, why then is it that we are talking about marital rape?

Electronic sources

1. http://www.healthcomms.org/hivaids/afriafya3.html
2. http://www.jamaicanforjustice.org/w_manifesto.htm
3. http://www.aidlaw.ca/Maincontent/otherdocs/Newsletter/April1995/319
4. http://www.phrusa.org/campaigns/aids/bgrd_women.html
5. http://www.hivnet.ch:8000/Africa/af-aids/viewr?1202
6. http://www.unifem.undp.org/human_rights/facts.html
7. http://europa.eu.int/comm/development/aids/html/n 10504.htm
8. http://www.makerere.ac.ug/womenstudies.htm

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