When cohabiting ends in death

The plight of live-in lovers who walk out of the union empty-handed in the event that it is terminated prematurely by either death or divorce was brought to the fore by the case of Netsai Ganda, who is now at loggerheads with her in-laws over her deceased partner’s estate.  Ganda (35) and Bernard who died recently at the age of 41, began a modest relationship several years ago and have been joined at the hip since 2011 when they decided to ‘move in together’.

In all the years of their union the couple acquired a number of properties, which included a house and two cars. When her live-in partner died last year, Ganda found herself with virtually nothing, as her in-laws took everything the couple had acquired. To the in-laws, their son had never been married but only co-habited — a union they deemed of no consequence.

Cohabitation is when couples live together with, in the sense of marriage; no lobola is being paid to the family of the woman. In Shona there is a crude word that is used which is Kuchaya or Kurova mapoto. For Ganda, all was well until the tragedy struck last year. For all intents and purposes they had considered each other husband and wife.

“All was well until my ‘husband’ died in a car crash over the Easter holiday last year,” said a sobbing Ganda. “It was then I learnt that cohabiting is disregarded in Zimbabwe. At first I thought if I seek audience with the courts, as a surviving “spouse” I would get something, but up to now nothing has materialised.”

Ganda, a human resources practitioner with a blue chip company in Harare said she had always trusted Bernard and assumed that if they were ever to separate, she would receive her “fair share” of the estate.

“I was absolutely stripped of everything,” she said. “Even though I had a good relationship with my in-laws, they changed their faces when the issue of my husband’s estates was brought up for discussion. The fact that we did not have children out of this marriage made matters worse.”

The above scenario is one of many cases of what cohabiting couples normally face in the event that their relationship is terminated for one reason or another. Even though statistics of cohabiting couples in Zimbabwe could not be immediately ascertained, it is no secret that there are many couples across the country nowadays who are cohabiting. Despite some marriages being preceded by cohabitation, research has shown that fewer than half of cohabiting unions end in marriage. Reasons why couples opt to cohabit vary, but the convenience it brings tops the list.

“More often than not, one partner, usually the man, might not be willing to commit himself to a formal marriage owing probably to the fact that he is already married to someone else might force him to cohabitate,” said Annamore Sarunde of Mkoba, Gweru.  Johannesburg-based Itai Garanewako, who for the past decade has been in such an arrangement  said the fact that sit-in marriages are “cheap” as there is no need to pay lobola makes these unions common.

“I chose to marry the mother of my two children this way is because I could not afford to make dowry payments. More so, instead of having to pay separate bills for water, electricity and rent, it was economic for us to just rent one house and share the bills.”

Since the coming of the new Constitution last year, virtually nothing has changed in how the law treats cohabiting couples, according to analysts, and their property in the event they chose or are forced to part ways. The truth is that cohabiting couples have no legal rights if they separate — so without an agreement, one of them could be left with nothing. However, according to the Zimbabwe Women Lawyers Association (ZWLA) the country’s laws only recognises three kinds of unions — the civil marriage, the registered customary marriage and the unregistered customary union.

ZWLA programmes officer Isabel Mapingure said couples should play their cards close to the chest as they have no fallback position in the event that the union collapses. “Basically, the Zimbabwean law does not recognise in any way living-together relationships. It is the prerogative of spouses to choose to either to go into cohabitation, registered customary marriage or unregistered customary marriage or face the consequences of their acts of omission or commission,” she said.
          
She added: “If a cohabiting relationship breaks down there is very little protection for the weaker partner, who in most cases is the woman, who often has children. As a result, some cohabiting couples find themselves facing difficulties should they split up, particularly when children are involved.” Social commentator Marian Dube said couples can engage in such relationship at their own risk.

“Cohabiting couples have no such rights, regardless of the number of years they have been together and whether they have children.”  Even though cohabitation relationships are common in Zimbabwe and the world over, very few people are aware of the limited protection the law can provide. She said women should have taken advantage of the constitution-making process to push for the harmonisation of marriage laws.

The need for legal protection is supported by the Zimbabwean Constitution which values the family and prohibits any discrimination based on sex, gender and social status. The International Covenant on Civil and Political Rights and the Convention on the Elimination of All forms of Discrimination Against Women provides for protection of the family and apply to cohabiting relationships.

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