The unregistered customary union between Vice President Constantino Chiwenga and Mary Mubaiwa ceased to exist more than two years ago when she was given a US$100 divorce token, and so they are no longer married, the High Court has ruled.
However, ancillary matters, which include the financial
affairs of maintenance and property division and the custody of children have
to still be settled in civil suits which can only be heard when Mubaiwa is able
to pursue these.
The marriage between the two was the unregistered customary
law union, which was terminated on November 24, 2019 after Mubaiwa was given
“gupuro”, a divorce token in the Shona culture, and that was adequate to end
the union under customary law and custom.
The ruling yesterday that the marriage ceased to exist at
that moment came after Vice President Chiwenga, through his lawyer Advocate
Lewis Uriri instructed by Mr Wilson Manase of Manase and Manase, filed an
urgent chamber application for an order terminating the customary union between
him and Mubaiwa.
Justice Owen Tagu granted the order, but said he confined
himself only to the declaration sought in the chamber application, ruling that
other ancillary issues ventilated in the main civil case would be decided at
the main hearing which is to be heard when Mubaiwa is able to pursue these
civil matters.
During the hearing, the judge was confronted with competing
arguments, one being for the grant of a declaratory order that the customary
union ended on November 24, 2019 and another opposing the relief sought.
Vice President Chiwenga, through his lawyers, argued he
gave Mubaiwa a divorce token, thereby terminating the union between them in
terms of the African law and custom.
On the other hand, Mubaiwa said the gupuro was given to her
in United States currency which she refused to accept as that currency could no
longer be lawfully transacted in Zimbabwe.
However, Mubaiwa could not say that the customary union had
not ended. On the contrary, she accepted that it had terminated, but blamed her
ex-husband for its demise.
After a careful analysis of the submission by both parties’
counsel, Justice Tagu said it was no longer a live issue whether the customary
union had ended and Mubaiwa in her own pleadings attested to this. Both parties
agree that the union had ended or came to a demise.
Justice Tagu said that Mubaiwa’s concern was one of
prejudice that she perceived would accrue to her if the termination of the
union was dealt with separately from the ancillary issues.
“She failed to disprove that the union had ended,” said the
judge when he declared that “the customary union between the parties had ceased
to subsist”.
The ancillary issues relating to custody, maintenance and
the property rights of the parties had been stood down for determination at the
civil hearings, which would be set down by Mubaiwa as and when she is able to
pursue the matter.
On the maintenance issue for either Mubaiwa or children,
the court ruled that the considerations were well established in the country’s
laws while the issue of custody cannot present the court with an insurmountable
difficulty, as the best interests of the children were of paramount
consideration.
In the end, the judge found no cogent reasons were given
for opposing the order sought.
In fact, the judge, noted that Vice President Chiwenga
would suffer prejudice if the determination of the status of the customary
union was held back simply to suit Mubaiwa’s convenience.
Justice Tagu also noted that the civil hearings have not
started at Mubaiwa’s instance and it was not clear when they occur, ruling the
delay would prejudice Vice President Chiwenga.
To this end, the judge saw nothing that could prevent him
from granting the order sought.
Mubaiwa, who was being represented by Ms Beatrice Mtetwa,
had opposed the application insisting that her customary marriage was
terminated and denied she was given the divorce token.
Mr Manase welcomed the court’s ruling saying no marriage
existed between the parties as from November 2019 and that this allowed Ms
Mubaiwa to pursue the ancillary matters in her own time without using her
health as an excuse. Herald
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