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Derechos de la mujer de propiedad y uso de la tierra en los Códigos Civil, de Familia y del Trabajo

  • In the country’s legal system, Roman-Dutch law, customary law and new legislation operate side by side. This is reflected in a plurality of marriage systems, partly regulated by customary laws that were developed by the colonial legal institutions, and partly by civil law. Section 23 of the Constitution gives precedence to customary law in the field of marriage and inheritance. This has worked to protect male privileges in relation to property (17).
  • There are three types of marriages in the country: registered customary marriage which is potentially polygamous; civil marriage under the Marriage Act which is monogamous; and unregistered customary law unions which are recognized only for limited purposes such as maintenance of the child and inheritance.
  • The Matrimonial Causes Act of 1985:

    - Deals with division of property upon divorce in a registered marriage. It allows for an equitable distribution of matrimonial property between spouses upon divorce. Direct and indirect contribution of the spouses to the matrimonial property is taken into account in the decision on division of property (7).

    - Does not apply to unregistered customary law marriages. While this type of marriage may be recognized by the parties and society as a valid marriage, the law generally does not consider it valid, except for certain specific purposes of African law and custom relating to the status, guardianship, custody and rights of succession of the children. As a result, women’s advancement has been hampered, especially considering that 80 percent of women live in rural areas, marry under customary law and do not register their marriages, mainly because of ignorance of the existence of the legal requirement for registration of marriages or ignorance of the implications of non-registration (7). 
  • The Matrimonial Causes Amendment Act of 1987:

    - Amends the Matrimonial Causes Act to extend the grounds for divorce applicable to civil marriages to marriages solemnized in terms of the African Marriages Act; and to widen the powers of the court to make a division of assets upon divorce by authorizing it to make consequential and supplemental provisions necessary to give full effect to any order it makes; and to allow the court to make an order relating to the property of one or another spouse that is held by another person and thereby order that person to transfer the property as the court directs (20).
  • The African Marriages Act of 1951:

    - Applies to marriages contracted only by African Zimbabweans and is governed by customary law.
  • The Customary Marriages Act of 1951, amended 2001:

    - Under the Act, marriages contracted according to customary law on or after 1 February 1918 and before 1 January 1951 which were not registered under the 1939 Native Marriages Act are regarded as valid marriages.

    - Provides for the “solemnization” of customary marriages by a customary marriage officer of the district in which the woman or her guardian resides. Customary marriages are not valid unless solemnized.

    - A marriage contracted according to customary law which is not a valid marriage in terms of this Act is regarded as a valid marriage for the purposes of customary law and custom relating to the status, guardianship, custody and rights of succession of the children of such marriage.

    - After the ceremony, the marriage must be registered in a marriage register. Any person employed by the State or a local authority or any chief may be appointed by the Minister to be a customary marriage officer for the purposes of this Act (21). 
  • The Customary Law and Local Courts Act of 1990:

    - Provides for the application of customary law in civil cases and for the constitution and jurisdiction of local courts.

    - In the application of customary law, the interests of children are paramount in any custody or guardianship case, irrespective of which law or principal is applied.

    - Polygamous marriages are to be recognized in civil cases if the marriage was contracted according to customary law.

    - Customary law that applies to the prohibition of marriages between people because of their relationship by blood or affinity will, in cases where customary law is applicable, prevail over the general law. However, if a marriage is to be contracted under the Marriage Act, the general law will prevail over customary law. If a court case arises wherein customary law is applicable, but the parties are connected with different systems of customary law, the court will apply the most closely applicable system of customary law to the case. The court may seek expert advice in such cases.

    - The jurisdiction of local courts or civil cases in which customary law is applicable applies when the defendant is normally a resident within the jurisdiction of the court, the cause of action arose within the jurisdiction of the court and the defendant agrees to the jurisdiction of the court.

    - Among the cases in which a local court will have no jurisdiction are those seeking to dissolve a marriage, unless the marriage, although recognized by customary law, has not been solemnized according to the terms of the African Marriages Act. Local courts may not determine the custody or guardianship of a minor or the liability of any person to maintain another (20).
  • The Maintenance Act of 1971:

    - Passed before independence, it was unknown to most people until after independence. While it does not have specific provisions in favour of women, it gives a woman the right to claim maintenance from the father of her child and vice versa. The liability of maintenance of children is the joint responsibility of both parents, though each contributes according to his or her means (7).
  • The Deceased Persons Family Maintenance Act of 1978:

    - Enables a surviving spouse and children to retain the matrimonial home and household goods and effects and to claim maintenance for themselves from the deceased’s estate (7). 
  • The Legal Age Majority Act of 1992:

    - Until 1992, women had been considered as legal minors. In 1992, the Legal Age Majority Act was adopted, giving women majority status and enabling them to administer properties and estates. However, the Constitutional provision that still allows discrimination has been used to argue that the Legal Age of Majority Act has no effect on customary law and cannot grant women rights that they do not enjoy under customary law (14). 
  • The Labour Relations Act of 1985:

    - Article 1 prohibits employers from discriminating against any prospective employee in regard to employment on the grounds of, among other things, sex (7).
  •  The Guardianship of Minors Act of 1969, amended in 2002:

    - Guardianship is granted to the father unless the child is illegitimate, in which case guardianship is granted to the mother. Section 3 of the Act gives fathers the right of guardianship within marriage, merely allowing mothers a right to be consulted by fathers and to apply to a judge “if a decision of the father in any matter relating to guardianship is contrary to her wishes and in her opinion likely to affect the life, health or morals of the minor to his detriment” (7).
  • The Immovable Property (Prevention of Discrimination) Act of 1982:

    - Prohibits discrimination regarding the sale, lease or disposal of immovable property and the financing of such sale, lease or disposal on the ground of sex (7).

    - The matrimonial property regime is out of the community of property unless parties enter into an ante-nuptial contract. If the couple wishes to choose a community of property regime, they must register a written agreement with the local Deeds Registry Office. A woman can thus acquire property in her own right (7).

    - In dividing the property upon divorce, the courts will look at the principle of equity rather than who bought what. The courts take into account the duration of the marriage, the direct and indirect contributions of the parties and the needs of each spouse and their minor children If the marriage is not registered, the Matrimonial Causes Act is not in force (7).
  • The Deeds Registry Act of 1959, last amended in 2001:

    - Section 15(1) of the Deeds Registry Act enables a married woman to deal with immovable property without the assistance of her husband. Prior to the amendment of the Act, a married woman could not deal in immovable property without the assistance of her husband (7). 
  • The Citizenship Act of 1984:

    - Children acquire their fathers’ citizenship. Women cannot pass their citizenship to their children. However, illegitimate children can acquire citizenship from their mothers.

    - Citizenship is almost automatically granted to a foreign woman married to a citizen; while that right is not accorded to foreign males married to citizens.

    - According to the Act, a woman’s nationality shall not be affected by marriage. She may acquire, change or retain her nationality as if she were an unmarried woman of full age. Similarly, marriage does not affect a woman’s majority status. She can transact, enter into contract, sue or be sued, in her own right. She can obtain a passport in her own right without her spouse’s consent (7).

Fuentes: los números entre paréntesis (*) se refieren a las fuentes que están en la sección de Bibliografía