In a development likely to inspire changes in the proposed
Marriages Bill that seeks to have unregistered customary law unions itemised, a
High Court judge has called for a countrywide database of married individuals
to reduce bigamy.
Bigamy occurs when a legally married person enters into a
second marriage contract with another without dissolving the first.
Currently, individuals wishing to marry are required to
provide passport size colour photographs of their images and fingerprints to
discourage bigamy.
However, Justice Sylvia Chirawu-Mugomba said this was not
enough in this era of technology.
She said there was nothing that prohibited the Registrar of
Marriages from having a real-time online database for all married persons.
“Every marriage officer must be mandated to search the
database whether or not the person intending to marry is free from other legal
impediments,” said Justice Chirawu-Mugomba.
“Additionally, or alternatively, every person who intends
to marry must produce a certificate of ‘present status’ obtained from the
Registrar of Marriages as a form of clearance.”
The judge made the remarks while handing down judgment in
the case in which a widow, Ms Susan Mobape, was suing Master of the High Court
Mr Manyadzwa Kamuchira N.O. and Ms Cynthia Chaitezvi, over maintenance from the
deceased estate.
Justice Chirawu-Mugomba’s remarks come against the backdrop
of the proposed Marriages Bill and even proposed criminal sanctions for those
found lying under oath.
She said the Registrar of Marriages could also consider
obtaining affidavits from intending spouses declaring that they are nor married
to anyone else under customary law (including unregistered customary law
unions) or general law in addition to a certificate of present status.
“Those found to have lied under oath about their marital
status must face the wrath of the law,” the judge said. “Perhaps these measures
will reduce the number of bigamous marriages.”
Ms Mobape had approached the High Court seeking a review of
the Master of High Court’s decision to dismiss her application for maintenance
in the estate of her late husband Lovemore Mobape.
The Master of High Court threw out Ms Mobape application on
the basis that she lacked the required legal footing in terms of Section 2 of
the Deceased Persons Family Maintenance Act.
She was asking for a combined US$1 380 maintenance to cover
herself for groceries, salaries for drivers, two security workers, church
meetings, car maintenance and licensing fees.
The couple had lived together as husband and wife for 42
years under unregistered customary law union until the demise of the former in
November 2017.
During the subsistence of their unregistered customary law
marriage the couple had founded a church, New Gospel Church of God. But at the
time of his death, Mr Mobape was still married to Ms Chaitezvi under civil law
(Marriage Act (Chapter 5: 11).
The Master of the High Court had ruled that Ms Mobape was
not entitled to an award of maintenance from the deceased estate in question.
In her ruling, Justice Chirawu-Mugomba upheld the decision
by the Master of High Court saying Ms Mobape was not qualified to be a
dependent in the estate of the deceased.
“In the final analysis, the applicant (Ms Mobape) has
failed to show that she is dependent as contemplated in Section 2 of the
Deceased Persons Family Maintenance Act,” she said.
Justice Chirawu-Mugomba directed the registrar of the High
Court to distribute her judgment to the attention of the Master of the High
Court, executive secretary of the Law Society of Zimbabwe (LSZ)and chairperson
of the Estate Administrators Council of Zimbabwe as well as the registrar of
marriages. Herald
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