Source: All Africa, 1 March 2017
When people are making wedding arrangements about which portion of the guests will get to eat the coleslaw salad; the last thing one plans for is for another woman to bolt in to stop the marriage.
After the high table and the satin decorations, the day is soon soured after the second woman alleges that; firstly, they are still married to the groom and secondly, that the wedding should not continue. The issue of gupuro has always been part of our African culture and yet the stories in the media show that not everybody has timeously acknowledged this procedure.
Under our customary law, when a person no longer wishes to be part of customary marriage, aside from showing their intention by word of mouth; they should give a rejection token known as “gupuro”. This token is generally not of much value but it serves as evidence that one party no longer wishes to remain in the customary union.
To understand the issue of dissolution of marriage, we have to have a grasp of the kinds of marriages that are recognised in Zimbabwe. We have the civil marriage under the Marriages Act (Chapter 5:11) and it is monogamous in nature, which means that you are legally bound to one man and one woman for the rest of your life until either of you dies or you decide to divorce.
The second is the registered customary law marriage which allows for the husband to have more than one wife provided that after they register the first wife, they do the same with the other wives. In reality however, we still have people in unregistered customary law unions whereby only lobola was paid and the parties co-existed for all practical purposes as husband and wife and this is the area where most issues arise.
Without diverting from the essence of this discussion, the unregistered customary law union is only recognised as a valid marriage for the purposes of inheritance, bigamy, loss of support, custody, guardianship, property sharing and adultery. For all other purposes, it is not recognised as a legal marriage in Zimbabwe. That in itself already sets it apart. The question we ask is therefore, is gupuro the equivalent of divorce under an unregistered customary law union? With the civil marriage, the law provides a mechanism for divorce under the Matrimonial Causes Act (Chapter 5:13) which contrary to popular belief does not mandate either party to the marriage to give the other a token of rejection.
For a decree of divorce to be granted, the parties must prove that the marriage has irretrievably broken down to the extent that it can no longer be restored to a “normal” marriage. However, the issue of dissolving a customary law union is not so set in stone. The custom of giving gupuro in itself is not standardised.
Some cultures just allow the husband (and now wife) to give their partner a token of rejection in the form of a coin in the presence of a witness while others just simply resolve to give their soon to be ex-partner this coin in private. Some may take it a step further and require that the husband brings a blanket to their in-laws to show that their wife has become too heavy a burden to carry.
There have been stories where Chiefs have ordered the payment of gupuro that goes up to $10. What is evident here is that one cannot simply allege by word of mouth that they no longer wish to stay in union after they have paid lobola; there is a procedure to be followed albeit nonstandard. This then brings us to the next bone of contention; how does one stop a wedding? Much to the delight of the press, a dramatic entrance into a wedding is entertainment gold but there are more dignified alternative methods to stop a marriage.
It is the legal norm that when two people wish to marry they advertise their wedding bans in the newspaper; obviously this seeks to alert all interested and aggrieved parties that two people wish to be bound together for life in holy matrimony. Because this is an announcement to the world, a person may lodge an objection with the marriage officer alleging among other things that the person who wishes to enter this marriage is still married to another person.
Without ending the first marriage, the party in question cannot enter into another marriage otherwise that would constitute bigamy which is a crime under our law. They can also go the marriage officer in the church where the parties intend to tie the knot with their objection to the continuation of this union.
The fact that there are no formalities to be followed when gupuro is being given already shows that there is a problem in the marriage laws in Zimbabwe. More often than not it is the woman who is left in that awkward and painful position of having to accept that her husband has chosen to solemnise a marriage with another woman. They have to either accept that this marriage is happening or find another solution so that their own marriage with this man has been concluded properly.
If the payment of lobola serves as evidence that two people wish to live together as husband and wife then should the law not enact a law to show that this marriage has officially ended? It is not enough to wait for another woman to descend on a gathering that is meant to bind families and become a dark cloud over a sunny day.
The law indeed needs to formalise this custom because the reality is that unregistered customary unions exist and they should be of equal importance to any other type of marriage in Zimbabwe.
Defending Women Defending Rights
Danai Chirawu is a legal officer at ZWLA.
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