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Increased vulnerability to HIV/Aids for women in unregistered customary law marriages as it relates to property and inheritance rights in Zimbabwe
Women and Law in Southern Africa (WLSA)
May 30, 2012

In 2001, the prevalence rate of HIV infection in Zimbabwe stood at 23.7%. In 2010, it declined to 14.3% a commendable achievement. However, some factors remain unaffected by this drop, chief among them the disproportionate effect of HIV/Aids on women. As at 2009, the life expectance for women stood at 47 years and 60% of Zimbabwean adults living with HIV were females. The gap for women aged between 15-24 years was even wider standing at 77%. The reasons still remain rooted in gender inequalities.

Formed in 1987 and formally registered in 1989, Women and Law In Southern Africa Research and Education Trust (WLSA -Zimbabwe) is part of a regional organization located in the seven Southern African countries of Botswana, Zambia, Lesotho, Mozambique, Malawi, Swaziland and Zimbabwe. WLSA uses evidence-based interventions to advocate law and policy reform for the betterment of women and girl's lives. Since 1987, WLSA has conducted research on laws and policies affecting women. WLSA has used the research to successfully advocate law and policy reform, for instance in 1997 the law relating to inheritance was amended substantially to favor the surviving spouse and children in the distribution of a deceased estate. WLSA provides legal aid to indigent women. Specifically, research has been conducted on gender, HIV/Aids and the law from a rights based approach.

Zimbabwe is a country that subscribes to the rights of women. This is evidenced by Zimbabwe signing and ratifying instruments such as CEDAW, SADC Protocol on Gender and Development and the Optional Protocol to the African Charter on the rights of Women in Africa. S23 of the Constitution of Zimbabwe recognizes non-discrimination on the basis of race, color, creed, marital status, gender, sex, tribe, political opinion, physical disability and place of origin. Zimbabwe has in place a fully-fledged Ministry of Women Affairs, Gender and Community Development. In 1982, Parliament passed the legal Age of Majority Act (Now part of the General Law Amendment Act) that made all Zimbabweans regardless of sex, majors upon turning 18 years. Prior to that, all African women were perpetual minors who were not legally competent to enter into contracts unassisted by their fathers or male guardians.

Despite the Constitution guaranteeing rights in the Declaration of Rights, the same Constitution in Section 23 (3) (a) and (b) allows discrimination in matters of personal law regarding the application of customary law. Customary law is more visible in matters of personal laws and this entails the law of husband and wife, law of persons, children and succession. This is an area where most women are located and that also plays a part in the increased vulnerability of women to HIV infection. In the infamous Magaya vs. Magaya case of 1999 the Supreme Court ruled that it was not discriminatory for the court to rule that an African woman had no right to inherit property from her late father since the Constitution permitted this discrimination. The same Constitution also allows the operation of customary law side by side with general law.

The marriage law system in Zimbabwe and the link with inheritance laws

Nowhere has the legal pluralism played out than in the marriage laws in Zimbabwe. There are only two legally recognized and registered marriages in Zimbabwe. These are the monogamous marriage under Chapter 5:11 and the potentially polygamous customary law marriage under Chapter 5:07. The third type is the unregistered customary law "marriage" ( the legally correct term being union )that is at law not valid except for purposes of guardianship, custody, access, maintenance and inheritance under customary law. This "marriage" comes into being when a man pays bride price for his wife. He may also pay bride price for more than one wife. According to research by WLSA, more than 50% of all marriages in Zimbabwe are not registered. This is due to a variety of factors such as the myth that registering a marriage is signing one's "death warrant" by the husband.

In 1997 the Parliament of Zimbabwe passed the Administration of Estates Amendment Act of 1997. This Act entails that at the death of wife or husband, the surviving spouse and the children inherit the property. This Act specifically recognizes a woman married in an unregistered customary law marriage as a wife for purposes of inheritance. The spouse inherits the house that they were living in prior to death, the household goods and contents and share the remainder with the children. These rights are reinforced by such international instruments as the Optional Protocol to the African Charter on the rights of women in Africa that Zimbabwe ratified in 2009. This means that despite her not having a marriage certificate, she is entitled to inherit from her late husband's estate. If a man has more than one wife, they will all inherit with the senior or first wife getting more. Therefore at least on paper, the inheritance law protects the rights of all women regardless of whether their marriage is registered or not.

The issue

WLSA Zimbabwe's concern lies in the lack of security in relation to inheriting property by women in unregistered marriages at the death of a spouse. While on paper, they are entitled to inherit, in practice, the situation is different. According to research conducted by WLSA and cases handled through the legal aid programme, these women face a multiplicity of problems by virtue of the fact that they do not have a marriage certificate. To be able to access the property, they need to register the estate with the Master of the High Court or Assistant Master at the Magistrate Court. To do this, they require the death certificate. To obtain the certificate, they need proof from the late husband's relatives that indeed they were married to the deceased under customary law. In comparison, a wife who has a registered marriage simply produces her certificate to the Registrar of Births and Deaths. The wife has to rely on the cooperation of her late husband's relatives to obtain the death certificate. Some of these relatives out rightly "disown" the wife or in a situation where there is more than one wife, they may favor one over the other. The handling of such disputes at the courts have not inspired confidence either in women because they have ruled against women in unregistered marriages even to the extent of calling them concubines. Therefore in the absence of the death certificate some women have been labelled mere girlfriends and have been chased from the marital home and walking away empty handed. Most of these women do not have means to pursue the legal process to the full. The relatives of the late husband literally pounce on the estate and help themselves to property that was acquired jointly by the wife and her deceased husband. In the research on gender, HIV/Aids and the law from a rights based approach, WLSA Zimbabwe worked with Gweru Women Aids Prevention Association (GWAPA) and its affiliates of Zvishavane Women Aids Prevention Association (ZWAPA) and Shurugwi Women Aids Prevention Association (SWAPA). These are organizations founded and run by sex workers. Most of the women stated that they turned to sex work after losing all they had worked for when their husband died and they were disowned by the husband's family. They resort to unprotected sex since it "pays" more. Put simply, the economic hardships that they endure makes them engage in transactional sex. Although some have tried to engage in incoming generating projects (others even successfully), others are lured back into sex work. The situation has been worsened by the economic down turn in Zimbabwe beginning in 1998. By engaging in unprotected sex, they increase the risk of infection or re-infection with HIV.

It is therefore WLSA Zimbabwe conclusion that the non- recognition of unregistered customary law marriages places the greatest impediment to women in such situations from accessing property and the death of their customary law husbands.

Benefits of recognition of unregistered marriages

Access to property and inheritance is an issue of economic survival. Equal and unfettered access to property and inheritance rights will ensure that women have access to resources. It will lead to more economic opportunities, higher security and less dependence on male relatives or transactional sex. Zimbabwe already protects legally the inheritance rights of women in unregistered marriages. Recognizing such marriages will remove barriers in obtaining death certificates, registering the estates and inheriting the property. Ultimately, it will result in economic security and thus a reduction in poverty and economic dependence. This will allow widows to be in a better position to negotiate safe sex therefore reducing the risk to HIV infection or re -infection.

Recommendation

WLSA Zimbabwe recommends the enactment of legislation recognizing unregistered customary law marriages as full marriages in fulfillment of the protective role of the law. This will enable such women to secure death certificates, register and administer their late husband's estate and inherit property as outlined in the Administration of Estates Amendment Act of 1997.

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