Types of Marriage: The lobola union
Many people consider payment of lobola to be marriage. However in law, lobola payment, without registration of the marriage is not really marriage. The law does not even refer to it as marriage but rather as an Unregistered Customary Law Union (UCLU). It is unregistered because it is not recorded anywhere in the database of marriages that are kept by the Registrar General. It is not covered by any Act of Parliament and so there are no clear rules in the law that guide how it is formed, ends (divorce process/death of partner) or what rights the people who are in such a marriage have within the marriage and after the marriage. It is a customary union because it comes from the customary practise of paying lobola/roora.
Unregistered customary law unions (payment of lobola only) are therefore not fully recognised as marriages without formal registration of the union.
Who can enter into this type of marriage?
It appears anyone can be in this union for as long as the parents or guardians of the woman agree to receive the money. There is no age limit and as a result most “child marriages” are in fact unregistered customary law unions.
There is also no requirement for the people who enter this union to be agreeable to being together. Most forced marriages including through wife pledging to pay off debts, or to settle a crime such as murder (kuripa ngozi), wife inheritance (kugarwa nhaka) are all doen through this practice.
How does one enter into this union?
An unregistered customary law union is entered into through the payment of lobola by the man to the woman’s family.
Where and when can this union be conducted?
Lobola is usually paid to the father of the bride, or the head of the family, if the father is no more. The man and his relatives are expected to travel to the woman’s home to pay the lobola. The payment of lobola can be done at any time of the day, but mostly in broad daylight. It is not culturally permitted to pay lobola in November.
Who should be there?
This union allows marriage by proxy; this means a man can marry a woman in his absence represented by his relatives or friends. In some cases, where both the woman and the man are not living in Zimbabwe, both of them can be represented at the lobola payment ceremony by their relatives.
The parents of the woman for whom lobola is paid decided which one of their relatives they want to invite. There is also need for a mediator (munyai) to be there, negotiating the bride-price between the two families.
When does this union come into being?
Once lobola is paid, the man and the woman are considered to be husband and wife. They can live together and start a family together.
How binding is this union?
Culturally this union is considered to be binding; the man is considered as the woman’s husband and the woman as the man’s wife. The man is allowed to marry more than one wife.
Legally, the union will become a marriage when the two decide to register their marriage, either as a customary marriage or a civil marriage.
The marriage certificate
There is no marriage certificate for this type of marriage because it is not registered. In most cases, proof that the marriage exists is by word of mouth or where it is needed in written form, it can be the sworn testimonies on affidavits of 2 of the man’s relatives and 2 of the woman’s relatives.
It is always wise for people in this union to keep evidence of it, such as a list of items paid as lobola or photographs of the ceremony.
What are the limited circumstances under which this union is recognised as a “marriage” in law?
The Union is recognised in respect of guardianship of children. These children are presumed to be legitimate children (born in wedlock) of the man and the father of the children is considered the legal guardian of the children. The children also have the same rights of succession (inheritance) as children in a customary marriage.
The Union is also recognised in terms of custody; children born under this union enjoy the same rights as children born under registered customary law marriages. In case of separation, unless there are compelling reasons, the mother is naturally allowed to take the children as their custodian. This union is also regarded as valid for purposes of maintenance of the wife in terms of the Maintenance Act which contains provisions on the circumstances in which spouses or former spouses should take care of each other and for their own children.
It seems as if it is recognised though in limited cases of guardianship of children and maintenance of children. Registration of marriage helps in being known as a spouse after death of the other part & also filing for divorce, readily available proof of marriage.