SATIMBURWA v NJOKOYA and ANOTHER (60 of 2025) [2025] ZWMTHC 60 (31 October 2025)

1 HCMTJ60-25 HCMTC115/25 VOLONICA SATIMBURWA versus SUSAN NJOKOYA And DIRECTOR OF PENSIONS OFFICE N. O HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 29 & 31 October 2025 OPPOSED APPLICATION Mr E. S Kadirire, for the applicant First respondent in person No appearance for the second respondent SIZIBA J: 1. This case presents yet another scenario where this court must determine proprietary rights of affected parties where a marital affair is preceded by a monogamous civil marriage involving one of the spouses. This court must again revisit the question of whether spouses who have contracted monogamous civil marriages are still under absolute protection from subsequent purported marriages involving one of the spouses when it comes to property rights in this jurisdiction. The applicant seeks a declaratur and consequential relief from this court in the following terms: “1. The registered customary union between the late Laston Tindirika and the 1st Respondent be and is hereby declared unconstitutional and unlawful. 2. The Applicant is the late Laston Tindirika‘s surviving spouse and has all rights and is entitled to privileges and benefits accorded by law to a surviving spouse of the said deceased person. 3. The 2nd Respondent be ordered to ensure that the widow’s pension, benefits or money owing and payable to the estate of the late Laston Tindirika be accorded to the Applicant. 4. Respondents to pay costs of suit on a higher scale of attorney-client if they oppose this application.” HCMTJ60-25 HCMTC115/25 FACTUAL BACKGROUND 2. The material facts in this case are common cause. On 26 October 1990, the applicant contracted a civil marriage with the late Laston Tindirika (hereinafter referred to as the deceased) in terms of the then Marriage Act [Chapter 37] which subsequently became [Chapter 5:11] and then [Chapter 5:17] in the recent past under the Marriages Act. Six children were born in that marital union. In 2004, the applicant and the deceased separated and lived apart. In 2008, the deceased contracted a customary marriage with the first respondent. This marriage was referred to in applicant’s papers as a registered customary union but there is no document to show that this was a registered marriage. In any event, such a distinction would not be relevant for purposes of this case. Nonetheless, it is important for parties and especially legal practitioners to ascertain facts which they plead so that the law can be applied to correct facts. The first respondent knew that the deceased had been married to the applicant from the onset although she says that she did not know that such marriage had been a monogamous one until she saw papers relating to divorce proceedings in 2019. The divorce proceedings between the applicant and the deceased were commenced in 2019 under case number HC309/19. The deceased passed on in December 2022 having lived with the applicant all the way from 2008 and two children were born out of that relationship. 3. The deceased had been employed by the Zimbabwe National Army and his pension benefits are held by the second respondent. When the applicant proceeded to the second respondent’s office with a view to processing such pension benefits, she was informed that the first respondent had also registered herself there as the surviving spouse who is entitled to the pension. The second respondent then referred the applicant and first respondent to the Master of High Court. The deceased’s estate was registered under DRMRE 495/25. At the edict meeting, the Master directed that no executor should be appointed since all what is there are pension funds which should be paid to the rightful HCMTJ60-25 HCMTC115/25 beneficiary. The applicant then approached this court for the declaration of her rights as captured in the draft order above. ARGUMENTS BY THE PARTIES 4. The first respondent resisted the relief sought by the applicant. Her stance was that she had been married to the deceased. She seemed to understand that her marriage to the deceased was not in terms of the law. She however insisted that she was entitled to the pension since she is the one who was living with the deceased during his lifetime. She lived with the deceased for about fifteen years. The deceased was supporting her and their children. She was passionate about having taken care of the deceased during his illness. She attached documentation relating to the deceased’s treatment for tuberculosis and other documents relating to the funeral policy at Doves. She petitioned this court to declare that she is the one who is entitled to the pension as opposed to the applicant who was not involved in the deceased’s life for the past fifteen years, only to pitch up after the deceased had died to claim his pension just because of her marriage certificate. She attacked the applicant for taking advantage of the fact that the deceased had died before the divorce proceedings were finalized. She also alleged that the applicant had lived with different men after her separation with the deceased. This allegation was denied by the applicant. 5. On the other hand, the applicant’s case was simply that she was the only surviving spouse at law in terms of her monogamous marriage with the deceased which was buttressed by s 5(1) of the Marriages Act [Chapter 5:17] and also s 104 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which outlawed bigamy. The proviso to s 68(3) of the Administration of Estates Act [Chapter 6:01] which invalidates customary marriages preceded by civil marriages for purposes of the administration of deceased estates was also relied upon as being applicable in this case. It was submitted that once this court finds that the marriage between the first respondent and the applicant was invalid as supported by the cases of Ncube v Ncube HB 132/14 and Makwiramiti v Fidelity Life Assurance of Zimbabwe (Private) Limited 1998 (2) ZLR 471 (S), then it HCMTJ60-25 HCMTC115/25 follows that the applicant was the only surviving spouse who was entitled to the pension. Mr Kadirire argued eloquently and persuasively in this regard. I then inquired from him whether the first respondent and the deceased were not in a civil partnership in terms of s 41 of the Marriages Act as at the death of the deceased. Counsel conceded that the two were in a civil partnership. His submission was that the first respondent would only benefit in terms of such civil partnership if she contributed to such assets. Counsel’s position was that this court should follow the stance which was taken by the Supreme Court of Zimbabwe in the Makwiramiti case (supra) where the facts were similar to the present case and where the court declined to award a pension to a woman who was in a similar situation with that of the first respondent. THE LAW AND ITS APPLICATION 6. There are clear pronouncements from the courts in this jurisdiction that there can be no valid marriage contracted by parties when one of the spouses is already married to someone else in terms of a civil monogamous marriage. Those decisions were based on a correct interpretation of existing legislation. Passionate remarks have been made by our courts in a bid to protect monogamous marriages from any encroachment and threat from subsequent love relationships with any spouse who has contracted a civil monogamous marriage. Courts have safeguarded the property rights and benefits due to the surviving spouses of monogamous marriages and ensured that any party who had encroached into such an exclusive marital relationship derives no benefit from the property, estate or financial benefits of a partner who had contracted a monogamous marriage. In Makwiramiti v Fidelity Life Assurance of Zimbabwe (Private) Limited and Another (supra) which was a unanimous decision of the Supreme Court of Zimbabwe, GUBBAY CJ (as he then was), made the following remarks at p 473: “Indeed, so jealously does the law guard against the profanation of the Christian ceremony of marriage that it criminally punishes bigamy and delictually punishes adultery. Moreover, it renders null and void a promise of marriage made by a married person even where that promise is conditional upon divorce or the death of the promisor’s spouse. Such a promise, being contra HCMTJ60-25 HCMTC115/25 bonos mores, debars an action for breach of contract. See Friedman v Harris 1928 CPD 43 at 45 in fine – 46; Claasen v van der Walt 1969 (3) SA 68 (T) at 70 B-C.” 7. The above remarks were quite strong, biting and unapologetic. The then Chief Justice went further at p 474 of the same judgment as follows: “A person can only be polygamously married if the law recognises him as being polygamously married. The deceased was monogamously married to Rosaria, and remained so until death. If his subsequent “marriage” to Rosemary never came into existence, it must follow that he was not a “polygamous person” but a monogamous person. It is not possible for a person to be monogamously and polygamously married at one time.” 8. The same stance above was taken in Ncube v Ncube (supra) and many other decisions of this court. In Mutsindiri v Tawodzera N. O and Others HH 163/23 at p 4 to 5 of the cyclostyled judgment, TSANGA J reiterated the same approach emphatically as follows: “What the deceased partook in was indeed a nullity. It was a simple nullity in that he was not in a position to take on another wife even in an unregistered customary law union which he did openly from the evidence of having paid lobola. His type of marriage did not permit him another wife in in the recognisable sense of a valid spouse. It is trite that in terms of our law, a party with a civil marriage is prohibited from contracting another marriage without going through a divorce or dissolution of such marriage or unless dissolved by death. A marriage contracted by or with a party to a civil marriage which has not been dissolved by divorce or death is indeed a legal nullity. It cannot be declared as a valid marriage for the purposes of the Administration of Estates Act.” 9. The learned judge continued at p 5 of the same judgment as follows: “The application is indeed frivolous and vexatious. A civil marriage is not open to multi-partism for good reasons in the sense of validly taking on another wife whilst in it. Those who wish to avoid the drama and heartache associated with polygamy avoid it. It gives a chance of equality between the parties by excluding all others. In our context, African women in particular who opt for a civil marriage often do so specifically because they do not want the husband to have more than one wife. There is no reason to cut into the rights of those who opt for monogamy from the start by allowing other parties to come in through the back door of inheritance. Granted under the consolidated Marriages Act [Chapter 15:15] of 2022, civil partnerships are indeed now recognised for purposes of property distribution upon separation in that civil partnership even if a party to it had a civil marriage. In such circumstances the Matrimonial Causes Act [Chapter 5:13] is to be used to share the property of the civil partnership.” (My emphasis) HCMTJ60-25 HCMTC115/25 10. The reality which was acknowledged by the learned Judge in the last part of her remarks above is that the legislature in enacting s 41 of the Marriages Act which provides for civil partnerships has made an incursion into the sacred circle of civil monogamous marriages by recognizing that where any such spouse engages in a genuine domestic relationship with another individual when such spouse is already party to a monogamous marriage, such a relationship would be recognized for the distribution of assets upon separation. There is more to this complex equation. S 41 of the Marriages Act provides as follows: “41 Civil partnerships (1) A relationship between a man and a woman who— (a) are both over the age of eighteen years; and (b) have lived together without legally being married to each other; and (c) are not within the degrees of affinity or consanguinity as provided in section 7; and (d) having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis; shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship and, for this purpose, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall, with necessary changes, apply on the dissolution of any such relationship. (2) The circumstances referred to in paragraph (d) may include— (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children; (h) the reputation and public aspects of the relationship. (3) No particular factor in relation to any circumstance may be regarded as necessary in determining whether or not the persons concerned have a civil partnership (4) A court determining whether a civil partnership exists is entitled to have regard to such matters and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) Where one of the persons in a civil partnership is legally married to someone else (hereinafter called the “spouse of the civil partner”), a court applying sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] to the division, apportionment or distribution of the assets of the civil partnership shall pay due regard to the rights and interests of the spouse of the civil partner and ensure that its order shall not extend to any assets which are proved, to the satisfaction of the court, to be assets properly belonging to the spouse of the civil partner. HCMTJ60-25 HCMTC115/25 (6) It is here provided that, by virtue of the partners dissolving their civil partnership, neither of them shall be deemed to be guilty of bigamy contrary to section 104 of the Criminal Law Code if either of them is legally married to someone else.” 11. In the case at hand, there can be no question about the validity of the customary marriage between the deceased and the first respondent. Their purported customary marriage was invalid. It is null and void at law in terms of s 5 (1) of the Marriages Act which safeguards a civil monogamous marriage against any marriage contracted by any of the spouses thereafter before divorce. The provision is very clear and it provides as follows: “5 Nature of marriages (1) A civil marriage is monogamous, that is to say, it is the lawful union of two persons to the exclusion of all others and no person may contract any other marriage during the subsistence of a marriage under the general law.” 12. The nature of the relationship between the first respondent and the applicant as at its dissolution by death was a civil partnership. The two lived together on a genuine domestic basis purporting to be husband and wife. They did so for fifteen years in a sexual relationship which resulted in the birth of two children. The deceased was supporting the first respondent and their children financially. The concession by Mr Kadirire that this was indeed a civil partnership was proper. Subsection (6) of s 41 of the Marriages Act absolves such a relationship from the crime of bigamy for purposes of determining the rights of such parties at the dissolution of the partnership. Subsection (5) protects the rights of the spouse of the civil partner in the determination of the rights of the parties who are in a civil partnership. In terms of subsection (1), ss 7 to 11 of the Matrimonial Causes Act [Chapter 7:13] kicks in in the determination of the rights of civil partners at the dissolution of their partnership. This means that where the civil partnership is dissolved during the lifetime of the parties, the court would have to exercise its discretion taking into account the direct and indirect contribution of such partners and all other relevant factors to achieve the statutory target of placing such civil partners in the position that they would have been in if the civil partnership had continued to subsist. This approach considers not only the rights of the civil partners but also the issues that HCMTJ60-25 HCMTC115/25 relate to the maintenance of their offspring whilst being alive to the rights of the spouse of the civil partner. 13. The critical question which must be answered in this scenario is whether a civil partnership comes into play or is only limited to those instances where the partnership is dissolved by separation when the partners become incompatible in their relationship during their lifetime when the provisions of the Matrimonial Causes Act are to be applied in determining their rights or sharing their assets. What happens in the event of death of any of the civil partners? 14. To answer this important question, one must interpret s 41 of the Marriages Act purposefully and with regard to the mischief that the legislature wanted to address by enacting that statutory provision. The mischief is very clear and it is exemplified in a number of cases including this very case. Spouses (either male or female) would go on separation after losing good taste of one another for one reason or another. Either or both of them would commence a new love relationship and cohabit with another party whether such party would be innocent or not but then in the meanwhile, the second party eventually invests emotionally and financially into that relationship. This would continue with none of the spouses to the civil marriage having approached a court of law for divorce and ancillary relief. It would also happen that during the cohabitation of the spouse of the civil marriage and the other party, some properties would be registered in the names of the spouse of the civil marriage while other properties would be registered in the names of the other party. Great loss would then occur at the end of the cohabitation between the spouse of the civil marriage and this party as no fair legal principles regulated such relationship. The Matrimonial Causes Act would not apply since it was not a marriage. Greater loss would also occur if the spouse of the civil partner who is protected by the law in that theoretically exclusive relationship grabs the property or benefits that would have accrued to the other spouse due to the industry and thrift of the civil partner. The existing legal provisions by then turned a blind eye to the plight of such civil partners on the basis that such relationship was immoral and illegitimate as it HCMTJ60-25 HCMTC115/25 intruded into the civil monogamous marriage which is mutually exclusive in making no room for the recognition of any love relationship or marriage after its existence. 15. In s 41(1) of the Marriages Act, the legislature then made provision and came up with a civil partnership concept for the purposes of determining the rights of civil partners at the dissolution of such partnership. In terms of the relevant provision, its literal reading does not limit the recognition of civil partnerships to parties who are separating during their lifetime. The specific use of the word ‘dissolution’ instead of ‘separation’ is quite telling. Dissolution is broader. It means more than separation. It also means bringing to an end, to dissolve, to break up or to disintegrate. Death also marks the dissolution of both a marriage and a partnership. The civil partnership concept kicks in at the dissolution of the relationship between the civil partners by any means. The fact that the legislature then went on to provide for the application of the Matrimonial Causes Act in determining the rights of the civil partners during their lifetime does not mean that those rights cannot exist when the relationship is dissolved by death. Nothing in the literal reading of that statutory provision supports the notion that the rights of the civil partners should not be determined when it is dissolved by death. If such rights accrue during the lifetime of the civil partners and are determinable upon their separation when they are alive, it would be absurd to then think or hold that those rights disappear when such union is dissolved by death. The only logical conclusion is that those rights remain and they must be determined as they cannot just cease mysteriously or just disappear or evaporate into space without any explanation or account. Having made provision about the law that must be applied at the dissolution of the civil partnership during the lifetime of the civil partners, the legislature left a lacuna and provided no legislative intervention as to what law must be applied at the dissolution of the civil partnership by death. There is urgent need for such legislative intervention and until it is set in place, common law principles of equity in the dissolution of partnerships should be applied when the court exercises its discretion to determine the rights of what I would now call the ‘surviving civil partner’ whilst safeguarding the rights of the ‘surviving spouse of the civil partner’. HCMTJ60-25 HCMTC115/25 16. Whilst this approach may be impugned as a leeway for the profanity of the civil monogamous marriage which is generally viewed by many as the most ideal and modest marital arrangement, sight should not be lost to the fact that this incursion into the monogamous marriage can no longer be labelled as being contrary to the public policy of Zimbabwe in light of the fact that the legislature has already purposefully removed the veneer of such sacrosanctity and exclusiveness in this monogamous union by enacting s 41 of the Marriages Act. As alluded to already, this veneer was not removed without good reason. There is nothing morally upright as well for a party to cling to a piece of paper in the form of a marriage certificate and delay seeking a decree of divorce after the streams of love have ceased to flow and when one is no longer ready and willing to render love, support, companionship and care for the other spouse until they die so as to pitch up conveniently and grab assets when another party who is the civil partner would have contributed towards such assets. This is predatory behavior which the legislature has sought to frustrate as a mischief in enacting s 41 of the Marriages Act. It is shameful and indecent and it is repugnant to one’s sense of justice. It also defies logic. It is immoral, cruel, inhuman and undignified. The court cannot then lag behind in giving effect to this commendable legislative intent. Before the new marriage law was in place, the courts had already frowned upon the intolerable behavior of parties who cling to paper marriages only to surface after the death of the other spouse claiming entitlement to the estate. In Mpofu v Mlavu and Others HB 17/16 at p12 of the cyclostyled judgement, MATHONSI J (as he then was) remarked as follows about a spouse who had wondered away and surfaced after three decades: “These are issues with legal implications on the rights of the present parties. ‘In Ndlovu v Ndlovu & Ors 2011 (1) ZLR 81 (H) 88E – F I had occasion to express the view that: The time has come to declare, in no uncertain terms, that parties cannot invest in a paper marriage only to surface after the death of the other person they had long abandoned to commence a new life. It is an unacceptable and extremely indecent habit which should be discouraged. If the marriage has failed, it should be terminated to release the parties to start afresh.’ HCMTJ60-25 HCMTC115/25 Floppa’s situation is worse than that because not only did she abandon the deceased for decades to commence a new life, she also contracted a civil marriage. She then re-surfaced after the deceased’s death even without the dignity of attending his funeral to lay a claim to his estate.” 17. The court decisions relating to the exclusive monogamous nature of civil law marriages which preceded the current Marriages Act [Chapter 5:17] no longer reflect the current legal position in the laws of marriage in this jurisdiction to the extent that they did not accommodate the existence of civil partnerships in terms of section 41 of the Marriages Act even where a marriage contracted after a monogamous marriage would be invalid. Those who have contracted civil monogamous marriages should now cling to both the marriage certificate and their partner or spouse and the two should forever love and take care of one another because the marriage covenant comes with both privileges and responsibilities and it is meant to be the most closest and intimate relationship and it is only in this sense that its exclusivity, absolutism and sacrosanctity can still be preserved as the door to the civil partnerships, which is separation of spouses, will be kept shut. The marital covenant by its very nature involves a serious vow whereby the parties undertake that only death will separate them and as long as they keep true to this sacred vow, the monogamous nature of their civil marriage will be fully realized. It is neither the legislature nor a court of law that opens the door to civil partnerships. The parties to the monogamous marriage are the custodians of the key to that door and it is them who will always open it either directly or indirectly and many a times they do it together. CONCLUSION 18. Having said thus, it still remains correct to say that any marriage contracted after one of the parties has contracted a monogamous civil marriage is null and void at law. To that extent, the proviso to s 68 (3) of the Administration of Estates Act [Chapter 6:01] which invalidates customary marriages contracted after civil monogamous marriages is still in line with the current law of marriage as codified in the Marriages Act [Chapter 5:17]. The rights which a court must determine in a civil partnership accrue during the lifetime of the civil partners and they are determinable upon the dissolution of the civil HCMTJ60-25 HCMTC115/25 partnership whether in their lifetime or upon death of both or either of the civil partners. Even where a marriage has been declared to be null and void, nothing stops the court from determining the rights of the surviving civil partner where it is apparent that there was such a civil partnership. Whilst the legislature has made provision that the Matrimonial Causes Act must apply in determining the rights of the civil partners who are alive, there is still a need for the legislature to make provision for the determination of the rights of the surviving civil partner where the other civil partner is deceased and such provision should also safeguard the rights of the surviving spouse of the civil partner. 19. In disposing this present matter, I therefore hold that the customary marriage between the deceased and the first respondent is invalid. The applicant is entitled to the half share of the deceased’s pension as the surviving spouse of the civil partner while the first respondent who was in a civil partnership with the deceased has a right to the other half share of the pension as the surviving civil partner of the deceased. I find no reason from the facts of this case to award a greater share to either of them. It is the deceased who worked for the pension and the contributions by both applicant and the first respondent were indirect. I also do not find any reason to award costs to either of the parties in this case. I therefore hold and declare as follows: (a) The customary marriage between the late Laston Tindirika and the first respondent be and is hereby declared null and void. (b) The applicant is the surviving spouse of the civil partner of the first respondent being the late Laston Tindirika and has the rights and entitlement to half of the privileges and benefits accorded by law to a surviving spouse of the said deceased person while the other half shall be payable or accorded to the first respondent as the surviving civil partner of her deceased civil partner being the late Laston Tindirika. (c) The second respondent be and is hereby ordered therefore to ensure that the widow’s pension, benefits or money owing and payable to the estate of the late Laston Tindirika be accorded to both the applicant and the first respondent in equal shares. (d) Each party shall bear its own costs. HCMTJ60-25 HCMTC115/25 Mugadza Chinzamba and Partners, applicant’s legal practitioners