Customary marriages remain an essential part of Zimbabwe’s cultural and legal framework. However, legislative changes introduced by the Marriages Act [Chapter 5:15] (hereinafter “the Marriages Act, 2022), have reshaped the recognition and legal consequences of these unions, creating important distinctions between registered and unregistered customary marriages. This article unpacks the legal position of customary marriages in Zimbabwe, drawing from the Marriages Act [Chapter 5:15] and the Administration of Estates Act [Chapter 6:01].

Types of Marriages Recognised in Zimbabwe

The Marriages Act, 2022, which came into effect on 16 September 2022, repealed and consolidated the former Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]. It formally recognises the following categories of marriages:

• Civil Marriages: Monogamous unions contracted under general law.
• Customary Law Marriages: Unions solemnised according to the customs of Zimbabwean communities. These can be further classified into:
  • Registered Customary Marriages: Unions that have been officially registered under the Marriages Act, 2022.
  • Unregistered Customary Marriages: Unions that have not been formally registered.

Registration of Customary Marriages

For a customary marriage to be recognised under general law, certain statutory requirements must be met:

• Section 17(1) of the Marriages Act, 2022 provides that a customary marriage must be registered within three months of its commencement. The parties to the marriage are required to submit prescribed information to the Registrar, along with any additional details reasonably required for the registration of the marriage. 
• For customary marriages entered into before the commencement of the Act, the Act required them to be registered within 12 months from the date the Act came into effect.
• It is important to note that failure to register the customary marriage does not invalidate the marriage under customary law, particulary with respect to the status, guardianship, custody and the rights of succession of the children of such marriage (Section 17(3)).

Legal Status at Divorce

According to Section 45 of the Marriage Act, 2022, only marriages that are registered under the Act may be dissolved by a court under the Matrimonial Causes Act [Chapter 5:13]. This means that parties to an unregistered customary marriage cannot approach the courts for a formal divorce decree. This distinction underscores that unregistered customary marriages do not enjoy the same legal status or protections as registered marriages under general law.

The Marriages Act, 2022, does not provide a formal procedure for the dissolution of unregistered customary marriages. Parties will therefore have to rely on the dissolution of the marriage under customary law.

Recognition in Deceased Estate Matters

While the Marriages Act, 2022 imposes strict requirements for the registration of customary marriages for the purpose of disolving the marriage, the law is more lenient in matters related to deceased estates. Unregistered customary marriages are fully recognised for purposes of estate administration under Zimbabwean law.

According to Section 68(3) of the Administration of Estates Act [Chapter 6:01], a marriage solemnised according to customary law, even if unregistered, is recognised as a valid marriage for purposes of inheritance and estate administration, provided that neither party was already in a monogamous civil or foreign marriage at the time the union was entered into. This legal position was confirmed in the case of Mukoyi v Charova N.O and Others (4969/2021) [2024] ZALMPPHC 159 (29 October 2024).

This means that a surviving spouse in an unregistered customary marriage:

• Is entitled to inherit from the deceased’s estate.
• May be appointed as executor of the estate under Section 68B of the Administration of Estates Act.
• Has legal standing as a beneficiary, as defined under Section 68(1) of the Administration of Estates Act. 

Key Differences in Recognition

Why Registration of Customary Marriages Matters

The legal significance of registering a customary marriage cannot be overstated. Registration of a customary marriage:

• Confers legal standing in divorce proceedings and for division the joint estate.
• Protects the rights of both spouses.
• Ensures equality with civil marriages under the law.
• Provides legal certainty, particularly in cases of divorce or disputes over the joint estate.

Conclusion

Registering a customary marriage under the Marriages Act [Chapter 5:15] ensures full legal recognition and access to court protections, especially in divorce proceedings. While unregistered customary marriages are valid under customary law and recognised for for inheritance under the Administration of Estates Act [Chapter 6:01], they do not offer the same legal security. To avoid uncertainty and safeguard each spouse's rights in cases of divorce, division of the joint estate, or spousal claims, it is important to ensure that the customary marriage is registered in accordance Zimbabwean law. 

Legislation Cited:

• Marriages Act [Chapter 5:15]
• Administration of Estates Act [Chapter 6:01]
• Matrimonial Causes Act [Chapter 5:13]

Disclaimer:
This article is intended for informational purposes only and does not constitute legal advice.  Readers are encouraged to consult a qualified legal practitioner for advice specific to their individual circumstances.