Spouses with title deeds can have live in lovers
MASVINGO–In a blow to morality and the sanctity of marriage, the High Court has ruled that a married spouse without title deeds cannot evict his/her spouse’s lover from the matrimonial homestead.
The ruling, is an appeal granted at the High Court in Masvingo by Justice Garainesu Mawadze and Justice Sunsley Zisengwe recently.
Justice Zisengwe who delivered judgment said a spouse without title deeds can only sue for damages as they have no legal standing to evict their spouse’s lovers.
He said marriages in Zimbabwe are out of community of property meaning that there is no automatic ownership of property by the spouses and joint ownership can only be shown through registration.
Justice Zisengwe decried the current state of law and said there is a need to reform it. He said the law runs contrary to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) which Zimbabwe has ratified.
He said the law relegates women to inferior status particularly in matters of ownership, control and disposal of the matrimonial home.
Justice Zisengwe said women with a monogamous marriage should have a right as their husbands to institute eviction proceedings against girlfriends as they have a right to protect the dignity of their marriages and sue for damages.
“I find the proposition that a husband is at liberty to bring live-in girlfriends into the matrimonial home with impunity is inimical to the principle of equality between the sexes and appears to be providing a right carte-blanche to men to bring into the matrimonial home live-in mistresses.
“Not only does that offend the express provisions of the Constitution as aforesaid, but also runs contrary to the ideal spouse in the CEDAW which Zimbabwe has ratified. A married woman should not be placed in the invidious and inequitable position where she is compelled to choose between continuing with the marriage and endure this kind of severe emotional abuse or simply get a divorce.
“Alongside a claim for adultery damages against a paramour and an action for divorce against the husband, a married woman should also have recourse by way of eviction against a woman who literally hops into the matrimonial bed with her husband. Regrettably respondent’s claim for an order interdicting the 1st appellant from continuing with her adulterous relationship with the 2nd appellant somehow fell by the wayside and ultimately was not an issue for determination in this appeal,” said Justice Zisengwe.
The appeal was granted to Jane Musindo (42) who had been evicted from the Kereke homestead by Mbuya Leocadia Kereke nee Muroiwa (74) in 2021.
Leocadia and her boyfriend, Sekuru Augustine Tongai Kereke (83) were the appellants (applicants) in the appeal.
Sekuru Kereke told the court that he regards Musindo as his second wife who cares for him more than his wife of 56 years.
The ruling also clearly states that Kereke and Musindo are in an open adulterous relationship. Justice Zisengwe referred to Leocadia as Sekuru Kereke’s mistress in the ruling.
The High Court ruled that Mbuya Kereke does not own the homestead and therefore does not have the legal capacity to evict Leocadia despite her marriage under the Marriage Act [Chapter 5:11] in 1966. She only has the capacity to sue for damages.
Leocadia had been staying at the Kereke homestead since 2015 and Mbuya Kereke moved from one child to the other until she instigated the eviction order at Bikita Magistrates Court in 2021.
“In the context of this case, it is common cause that the Kereke homestead belongs to Kereke who has found it fit to invite Leocadia thereto. Not being the owner of the said homestead, therefore, the respondent was unable to establish one of the prerequisites for an order for eviction. Her claim in that regard could not and should not have succeeded,” said Justice Zisengwe.