ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF LAW

BACHELLOR OF LAWS (HONOURS) DEGREE

GEOFFREY MAENZANISE R220403L

MELISSA R MAHATA R220370L

MABHEKA JOSEPH R220401L

NAOMI MAGANGA R220366L

KUZIVAKWASHE MAKUKU R220389L

ORDINANCE MAHUKE R220467L

ALICE MAGURA R220360L

CHIDO VANESSA MAKONI R220386L

GEORGINA TAWANDA R220373L

COURSE: FAMILY LAW

QUESTION: IDENTIFY AND DISCUSS THE LAWS WHICH THE STATE HAS PUT
IN PLACE TO ENSURE THE CONTINUED EXISTENCE OF A FAMILY AND
DISCUSS HOW EFFECTIVE THEY ARE. (30 MARKS)
INTRODUCTION
A family is defined as a group consisting of two or more individuals related by blood,
marriage, or adoption. A family can also be defined as a kin group based on the institution of
marriage, shares a household and is a co-residential group. The durable association of people
who are united by blood, marriage, or adoption can provide for the socialization and
procreation of children. Various laws have been enacted to ensure that a family continues to
exist. Some of these include the Universal Declaration of Human Rights, the Constitution, the
Administration of Deceased Estate and others that will be brought to light as the essay
unfolds. More details about these laws will be covered in the essay.
THEORIES
As a point of departure, the International Human Rights Standards recognizes the family as
the natural and fundamental group unit of the society. According to Article 16 (3) of the
Universal Declaration on Human Rights a family is the natural and fundamental group unit of
society and is entitled to protection by society and the State. 1 One can be of the view that the
definition of the term “family” is enshrined in a cloud of debate. This emanates from the
failure of the existence of a national statute that gives a precise definition of a family thus
various scholars have come up with different theories that describe the aforementioned term.
Murdock alludes that, “The family is a social group characterised by common residence,
economic cooperation and reproduction. It includes adults of both sexes at least two of who
maintain a socially - approved relationships and one or more children own or adopted of the
sexually cohabiting adults”. On the other hand, Burgess and Locke have a comprehensive
view of a family. He states that a family is “a group of persons united by marriage , blood or
adoption constituting a single household , interacting and communicating with each other in
their respective roles of husband and wife , mother and father, son and daughter , brother
and sister and maintaining a common culture”.2 Moreover, Iwerierbor, an African writer
stipulates that there are various types of families such as the nuclear family , the extended
family , the monogamous family , the childless couple and the single parent family. With the
given theories above, the thesis of this essay is to pinpoint the pieces of legislation set by the
state to ensure the continued existence of the various types of families.

COMPETENCE TO MARRY

Firstly, competence to marry is very key in the existence of a family. This is because it curbs
against abuse as girls and boys who are below the competent age are susceptible or prone to
abuse which then leads to a chaotic family and they would not have matured to handle the
pressure in marriage, thus leading to divorce. Raising the age of consent to the age of
eighteen by the State explicitly ensures the existence of a family in Zimbabwe . The historical
position of this view before the enactment and promulgation of the new Amendments that
were done to the constitution and other statutes has been vividly articulated thatne in three
Zimbabwean girls was married off bbefore attaining the age of 18.More so one girl below
the age of 18 is married off every three seconds worldwide, according to a British community

1
See Article 16 (3) of Universal Declaration on Human Rights. See also Convention on the Rights of a Child
Preamble.
2
Burgess and Locke 1945.
development charity below the age of eighteen 3.As such the State has set in place
regulations that will help to ensure that no one vitiates the existence of a family .There are a
plethora of epiphanies that have been brought to light by the legislation in trying to protect
the children from entering into marriages before attaining eighteen years which will affect the
family as children are part of family .as shown in Section 81 of the constitution which states
that , a child is to say every boy or girl who has not attained 18 years 4.It is imperative to note
that constitution protects family as it made the age to marry to be 18 as it has been shown on
Section 78 (1) which states that ‘‘Every person who has attained the age of eighteen has the
right to found a family.” 5.Recently the state enacted the new Marriages Act which stipulates
on Section 3 (1) that ‘No person under the age of eighteen years may contract a marriage or
inter into an unregistered customary marriage or a civil partnership’ 6. It can also be seen in
the Criminal Codification and Reform Act the amendment of section 64(1)...making it a
requirement for a person who is accused engaging in sexual with a person below the ages of
eighteen7. In terms of The Universal Declaration of Human Rights Article 16 states that the
right to found a family or to marry is given to those above the age of eighteen years 8.To give
a more pragmatic example substantiating this fact it has been shown in the case of Mudzuru
and Another V Minister of Justice and Another when it was stated that eighteen years is the
minimum age of marriage in Zimbabwe. Thus, no person male or female may enter into any
marriage be it customary marriage or any other marriage people may think of without
reaching the Age of eighteen 9.As such it shows the measures that State has taken in order to
ensure the protection of a family in Zimbabwe.

MARRIAGE AND THE FAMILY

Marriage is a fundamental element of the family institution. 10 It is commonplace that the

family institution begins with the solemnisation of two persons’ union under a valid contract
duly recognised by the recently enacted Marriage Act [Chapter 5:15], hereinafter referred to
as the ‘Marriage Act’. The state of Zimbabwe goes on to protect the family institution by
recognising that there are diverse and nuanced methods of creating a dedicated family unit.
To clarify, s5 of the Marriage Act, speaking on the nature of marriage, recognises that there is
a civil union (monogamous), a customary law marriage (potentially polygamous), an
unregistered customary law union (fundamentally equal to a customary law marriage) and

3
Maureen Sibanda the research and advocacy unit, in her article called Child Marriages: Married too soon on
page 2. See also Corerelates of child marriages in Zimbabwe
https://journals.sagepub.com/doi/abs/10.1177/0192513X18755198/ Accessed on 21 November 2022. See also
World turning blind eye to 10 million child brides every year charity warns, Available on
http://www.guardian.co.uk/society/2011/jun/26/10-million-child-brides-each-year-charity-warns.Accessed / on
21 November 2022.
4
Constitution Of Zimbabwe Amendment (No .20) Act 2013 Section 81 (!)
5
Ibid Section 78 (!)
6
Marriages Act (chapter5:15) section 3 (!)
7
Criminal Codification and Reform Act( Chapter 9:23) Amendment of section 64 (1)
8
Universal Declaration of Human Rights Article 16
9
Mudzuru And Another v Minister of Justice and Another CCZ 12/2015
10
See ‘A Second Sailing? Recovering Marital Unity and the Purposes of the Family’ Family Politics: The Idea
of Marriage in Modern Political Thought, pp. 227-52 accessed on
<www.onebookcentral.proquest.com/lib/zegu-ebooks/detail.action?
docID=1036991&query=marriage+and+family> 24 November 2022.
even a civil partnership (a circumstantial union).11 By recognising the diversity and nuances
by which a family institution may be created, the new Act has accomplished a virtually
holistic adaptation of its constitutional mandates. Specifically, the Marriage Act has paid due
attention to ss3, 16, 25, 56, and 78 which speak to the ‘founding values and principles,
culture, protection of the family, equality and non-discrimination, and marriage rights’ of the
Constitution of Zimbabwe.12 Simply put, the new Act has denied to refuse the absence of the
varied cultural life in Zimbabwe, to impose undue legal inequalities based on the nature of a
marriage, and has in fact allowed those capable of marrying to do so under a diverse set of
choices – that even allows a transformation of a monogamous customary marriage to a civil
union.13
With regard the recognition of different types of marriages, the important legal consequences
are the protection of children’s legal interests (succession to property, maintenance,
guardianship, access and custody) which are fundamentally enshrined in the Constitution, and
the protection of ex-spousal interests (division of property, succession of property, and
maintenance). To conclude, the diversity of marriages and/or unions removes vulnerabilities
that would have otherwise infringed on the family’s constitutional rights.

EQUALITY AND NON-DISCRIMINATION

In addition ,the writer’s eye has been drawn towards the point that the state has put the
measure of equality and non-discrimination of the of anyone in a family with regards to the
guardianship of children of minor children in a marriage .Prior to the enactment of the 2013
Constitution there was no equality by the the spouses in a family in terms of the harmful
cultural practises that only affected women than men and it affected them in their families
even their marriages that they had it was unfair and they were treated as perpetual minors
14
..It was repugnant towards the women as these diabolic misdemeanour's that had created
an uneven playing field as women could were only consulted on decisions that men would
have done as individuals according to Section 3 of the Guardianship and Minors Act 15 .With
the coming in of the 2013 Constitution it did away with non-discrimination ,this has been
exhibited in Section 56 (2) of the constitution which states that ‘Women and men have the
equal treatment…’’16.This view has been echoed by Section 80 which has it that every
woman has same rights regarding the custody and guardianship of children. 17 In terms of
Section 26 (c) of the same constitution states that there is equality of rights and obligation of
spouses during subsistence of marriage and the dissolution of marriage. 18this has been shown
in the Marriages Act Section 6 Parties to any marriage have equal rights and obligations
during the subsistence and dissolution of marriage 19.In terms of Convention on the
11
ss5, 16, 17, 41 Marriage Act [Chapter 5:15].
12
Ss3, 16, 25, 56, 78 Constitution of Zimbabwe Amendment (No. 20) Act, 2013
13
S5(4) and (5) supra note 2.
14
Roselyn, 2006. Sexual abuse and exploitation of the girl child through cultural practices in Zimbabwe: A
human rights perspective. A dissertation submitted in partial fulfilment of the requirements of the LLM (Human
Rights and Democratization in Africa) University of Pretoria. Available on
http://137.215.9.22/bitstream/handle/2263/1214/hanzi_r_1.pdf?sequence=1 Accessed on 21 2022
15
Guardianship Of Minors Act Section 3
16
The Constitution of Zimbabwe Amendment (No.20) Act 2013 Section 56 (2)
17
Ibid Section 80
18
Ibid Section 26
19
Marriages Act chapter 5:15 Section 6
Elimination Of Discrimination Against Women Article 16 States that ,State parties shall take
appropriate measures to eliminate discrimination against women within the family and they
should be equality between men and women20 .This has been proven beyond any reasonable
doubt indeed the State has put in place to ensure the continued existence of a family.

CONSENT

Consent as a pre-requisite in the formation of a marriage institution is a fundamental feature

which ensures the continued existence of the family institution. The constitution provides for
the freedom of conscience of the individual citizen. 21 The state puts these measures in place
to create a solid marriage foundation that is not easily prone to dissolution. Both parties must
consent but consent can be vitiated by insanity, duress, mistake about identity but not about
the qualities of the other person, drugs or alcohol. To avoid these issues this ensures a strict
marriage procedure that accommodates the presence of a certified marriage officer, witnesses
with bona-fide intentions. In addition, the constitution provides that no person may be
compelled to enter into marriage against their will, all these are measures put in place to
eliminate future loopholes that may affect the continued existence of a family institution. 22
Furthermore, the Marriage Act Chapter 5:17 states that a marriage shall not be solemnised or
registered in terms of this Act unless each party to the marriage has given his or her free and
full consent to the marriage. 23 In view of the above analysis ,the requirement of consent for
the marriage is of paramount social importance.

INHERITANCE

The state implemented or adopted laws that govern inheritance to guarantee the continued
existence of the family. Children born out of wedlock are no longer neglected as the law now
recognises them in terms of inheritance of their father’s estate. Several pieces of legislation
such as the Administration of Estates Act (chapter 6:01) and the Deceased Estates Succession
Act (chapter 6:02) discredited the custom based notion or belief that only male children’s
rights to inheritance were recognised. The mentioned legislative instruments emphatically
and correspondently acknowledge the issue of inheritance of minor children born in an out of
community property marriage in article 21 and article 2(b)(1) respectively. 24 This ensures the
continued existence of family because by the introduction and modification of already
existing laws to suit the changing society, the state was able to terminate such cases or
conflicts that arise in families due to inheritance. A good example to fortify the issue of such
conflicts which arise from the issue of inheritance is clearly portrayed by the case of Magaya
v Magaya where the issue presented in casu was that the older son of the deceased was born
out of wedlock and was claiming inherit from the father’s estate whilst the daughter born in
wedlock was older than the son was claiming to inherit. 25 Though the court denied the
daughter her claim, the case transformed the relations within the family institution as it led to
20
Convention on the Elimination of Discrimination Against Women Article 16
21
The Constitution of Zimbabwe Amendment (No.20) 2013 section 60(2)
22
The Constitution of Zimbabwe Amendment (No.20) 2013 section 78(2)
23
Marriage Act Chapter 5:17 section 4
24
Administration of Estates Act (chapter 6:01), Article 21. See also The Deceased Estates Succession Act
(chapter 6:02), article 2(b)(1).
25
Magaya v Magaya
reconsiderations of their decision. The decision also equalised the male and female children
in terms of inheritance. Therefore, the continued existence of family is evidently prioritised in
Zimbabwe through the enactment of various statutory provisions. However, in terms of
effectiveness of these laws, the modern and western inspired values on equality between men
and women on the rights of children have clashed with traditional and customary values on
the same matters26. Thus, most people are strongly culture-diluted and are not willing to
recognise the laws that aid in maintaining the family institution.

SAME SEX MARRIAGES

It is imperative to note that the state has enacted laws that assist in the upholding of the
Zimbabwean culture and morals with regards to the same sex marriage. The law that the state
has put in place in ensuring the continued existence of a family is the Constitution of
Zimbabwe Amendment.20 (2013) which on section 78(3) clearly states that 'Persons of the
same sex are prohibited from marrying each other'. 27 Same-sex marriage is marriage between
partners of the same sex and/or gender identity. 28This has been put in place by the law
enforcers that is the legislature so as to protect the family institution as in accordance with
section 25 of the constitution of Zimbabwe which talks about protection of the family. 29For
decades researchers have reported that lesbian, gay, bisexual, and transgender (LGBT)
individuals experience a range of significant health disparities and a disproportionate rate of
negative health outcomes. Adolescents with same-sex attraction are more than twice as likely
as their peers to attempt suicide. Gay men are at higher risk of contracting HIV and other
sexually transmitted infections. LGBT people have higher rates of smoking and of alcohol
and drug abuse. Elderly LGBT people are more likely to experience social isolation and face
barriers to accessing needed care.30Thus the state has introduced laws through the
constitution of the Republic of Zimbabwe which is there to guard against same sex marriage
as a way of improving and ensuring the continued existence of the family institution which
involves a father, mother and their children not same sex partners.
Notwithstanding the above facts the other side of science seems to advocate the existence of
same-sex marriage and headed families.31Some assert that same-sex couples should not have
the right to adopt or become foster parents because lesbian and gay individuals would be
unfit for parenting. Scientists, however, who for several decades have researched the
behaviour of same-sex couples and their children, have consistently found empirical evidence
that contradict these assumptions. “The evidence suggests that relationships of lesbian and
gay couples are just as supportive and that home environments provided by lesbian and gay
parents are just as likely as those provided by heterosexual parents to enable psychosocial
growth among family members.”32Five selected scientific findings can be raised to this effect.
There is no scientific basis to assert that lesbian and gay persons are not equally fit to marry
26
Welshman Ncube, Zimbabwe Law Review volume 14: Defending and Protecting Gender Equality and the
Family Under a Decidedly Undecided Constitution in Zimbabwe, University of Zimbabwe, Harare, 1994
27
The Constitution of The Republic of Zimbabwe Amendment (No.20) 2013 section 78(3)
28
https://www.law.cornell.edu/wex/same-sex_marriage (Accessed on 23 November 2022, 16:31)
29
The Constitution of The Republic of Zimbabwe Amendment (No.20) 2013 section 25
30
https://www.healthaffairs.org/doi/10.1377/hlthaff.2017.0502 (Accessed on 23 November 2022, 16:41)
31
‘Marriage and Family Issues for LGBT People’, American Psychological Association, 2011, accessed on 23
November 2022 <www.apa.org/pi/lgbt/resources/marriage-and-family#>.
32
Patterson, C. J. (2000). Family relationships of lesbians and gay men. Journal of Marriage and Family, 62, p.
1064.
or to become parents of healthy and well-adjusted children. 33 There is no empirical
foundation for concluding that lesbian mothers or gay fathers should not become parents on
the basis of their sexual orientation.34 Being involved in a gay and lesbian relationship is
unrelated to a person’s ability to care for children. 35 Scientific surveys show that lesbian and
heterosexual women share similar approaches to child rearing. 36 Numerous studies indicate
that gay fathers are no different from heterosexual fathers in their ability to parent and to
foster the healthy development of their children. 37In conclusion, one cannot conclusively
assert that s78(3) of the Constitution of Zimbabwe is by necessary implication aimed to
protect the family institution insofar as social science is concerned, but perhaps it is more
accurate to say that the said provision is nothing more than a moral affirmation that mirrors
public legal opinion.38

CONCLUSION

In conclusion, distinctive laws have been enacted to ascertain the continued existence of a
family. These are inclusive of the Universal Declaration of Human Rights, the Constitution,
the Administration of Deceased Estate and others that were highlighted above. The state
continues to initiate and enact new and improved laws that seek to protect the family
institution especially through common law that is conscious of modern trends and moving
legal science.

33
Herek, G. M. (2006). Legal recognition of same-sex relationships in the United States: A social science
perspective. American Psychologist, 61(6), 607- 621; Peplau, L. A., & Fingerhut, A. W. (2007). The close
relationships of lesbians and gay men. Annual Review of Psychology, 58, 405-424; Cramer, D. (1986). Gay
parents and their children: A review of research and practical implications. Journal of Counseling &
Developments, 64(8), 504-507.
34
Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family. New York: Guilford Press; Patterson
(2000); Armesto, J. C. (2002). Developmental and contextual factors that influence gay fathers' parental
competence: A review of the literature. Psychology of Men and Masculinity, 3, 67 – 78.
35
Pagelow, M. D. (1980). Heterosexual and lesbian single mothers: A comparison of problems, coping, and
solutions. Journal of Homosexuality, 5(3), 189- 204; Patterson, C. J., & Redding, R. E. (1996). Lesbian and gay
families with children: implications of social science research for policy. Journal of Social Issues, 52(3), 29-50.
36
Kweskin, S. L., & Cook, A. S. (1982). Heterosexual and homosexual mothers’ self-described sex-role
behavior and ideal sex-role behavior in children. Sex Roles, 8(9), 967-975; Miller, J. A., Jacobsen, R. B., &
Bigner, J. J. (1981). The child’s home environment for lesbian vs. heterosexual mothers: A neglected area of
research. Journal of Homosexuality, 7(1), 49-56; Patterson (2000); Mucklow, B. M., & Phelan, G. K. (1979).
Lesbian and traditional mothers’ responses to Adult Response to Child Behavior and self-concept.
Psychological Reports, 44(3), 880-882.
37
Armesto (2002).
38
S78(3) Constitution of Zimbabwe Amendment (No. 20) Act, 2013.
 BIBLIOGRAPHY

LEGISLATION
Universal Declaration on Human Rights Article 16
Convention on the Rights of a Child
Constitution Of Zimbabwe Amendment (No .20) Act 2013
Marriages Act (chapter5:15)
Criminal Codification and Reform Act( Chapter 9:23)
Guardianship Of Minors Act (Chapter 5:08)
Convention on the Elimination of Discrimination Against Women Article 16
Administration of Estates Act (chapter 6:01)
Deceased Estates Succession Act (chapter 6:02)

CASE LAW
Mudzuru And Another v Minister of Justice and Another CCZ 12/2015
Magaya v Magaya

BOOKS
Burgess and Locke 1945
Welshman Ncube, Zimbabwe Law Review volume 14
Understanding Women Empowerment: A comparative analysis of demographic and health
2008
‘A Second Sailing? Recovering Marital Unity and the Purposes of the Family’ Family
Politics: The Idea of Marriage in Modern Political Thought, pp. 227-52 accessed on
<www.onebookcentral.proquest.com/lib/zegu-ebooks/detail.action?
docID=1036991&query=marriage+and+family> 24 November 2022.

ARTICLES
Patterson, C. J. (2000). Family relationships of lesbians and gay men. Journal of Marriage
and Family, 62, p. 1064.
Herek, G. M. (2006). Legal recognition of same-sex relationships in the United States: A
social science perspective.
Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family
Pagelow, M. D. (1980). Heterosexual and lesbian single mothers: A comparison of problems,
coping, and solutions. Journal of Homosexuality
Kweskin, S. L., & Cook, A. S. (1982). Heterosexual and homosexual mothers’ self-described
sex-role behavior and ideal sex-role behavior in children.
Armesto (2002).
Maureen Sibanda the research and advocacy unit, in her article called Child Marriages:
Roselyn, 2006. Sexual abuse and exploitation of the girl child through cultural practices in
Zimbabwe:

WEBSITES
https://journals.sagepub.com/doi/abs/10.1177/0192513X18755198/
http://www.guardian.co.uk/society/2011/jun/26/10-million-child-brides-each-year-charity-
warns.Accessed/
http://137.215.9.22/bitstream/handle/2263/1214/hanzi_r_1.pdf?sequence=1
https://www.law.cornell.edu/wex/same-sex_marriage (Accessed on 23 November 2022,
16:31)
https://www.healthaffairs.org/doi/10.1377/hlthaff.2017.0502 (Accessed on 23 November
2022, 16:41)
www.apa.org/pi/lgbt/resources/marriage-and-family#