University of Zimbabwe, Faculty of Law , Family Law Lecture Series, 2020
Presented by Dr. Elizabeth Lwanda-Rutsate at the Faculty of Law, UZ
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IHRS
Key Constitutional Provisions
Evolving Family Unit;
Family Indicators;
Family Types;
Challenges
The Law & the Family;
State’s Role in the Family;
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IHRS are a starting point as they are
binding universally emanating even
from customary international law such
as UDHR;
IHRS recognise the family as the
natural and fundamental group unit of
society.
On the other hand, National Statute law
does not define family except by
implication.
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Art 16 (3) of UDHR which states;
“The family is the natural and fundamental group
unit of society and is entitled to protection by
society and the State.”
Arts. 16 (1) & (2) stating that;
“1. Men and women of full age, without any
limitation due to race, nationality or religion, have
the right to marry and to found a family. They are
entitled to equal rights as to marriage, during
marriage and at its dissolution. 2. Marriage shall be
entered into only with the free and full consent of
the intending spouses.”
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S 16 of CEDAW - Recognises the individual rights of
women in establishing a family within the family and upon
its dissolution
Requirement of equality enables women to be free to
consent to marriage with its implications of decision
making vis-à-vis;
 free choice of entry into marriage,
 parental responsibilities,
 child spacing ,
 choice of family name
 profession or occupation ,
 dissolution of marriage ,
 guardianship and adoption of children.
CRC
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CRC Preamble;
Convinced that the family, as the fundamental
group of society and the natural environment for
the growth and well-being of all its members and
particularly children, should be afforded the
necessary protection and assistance so that it can
fully assume its responsibilities within the
community, Recognizing that the child, for the full
and harmonious development of his or her
personality, should grow up in a family
environment, in an atmosphere of happiness, love
and understanding,
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Art. 28 African Charter on Human &
People’s Rights (ACHPR)
Art. 18 (2) >>Family portrayed as the
custodian of morals and traditional values
recognised by the family.
See also articles 27 - 29 - duties of the
individual reflect aspects of African values
according to which individuals within the
community have certain duties in addition
to rights.
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Protocol to the ACHPR on the Rights of Women
(Maputo Protocol)
Art. 6 on Marriage rights;
African Charter on the Rights & Welfare of the
Child (ACRWC)
Preamble:
“RECOGNIZING that the child occupies a unique and
privileged position in the African society and that for
the full and harmonious development of his personality,
the child should grow up in a family environment in an
atmosphere of happiness, love and understanding,”
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Article 17 of the International Covenant on
Civil & Political Rights (ICCPR) prohibits
arbitrary or unlawful interference with the
family.
Individual - vs. - collective rights = individual
rights within the family regulate internal
relations within the family and provide the
basis for the constitution of the family as a
collective unit, collective rights of the family
regulate external relations of the family within
the rest of the community.
Its a continuum i.e. Individual >> family >>
community/ society.
2013 CONSTITUTION’S IMPACT
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The 2013 Constitution has greatly revolutionized
Zimbabwe’s family and child laws under both general
and customary law since the Constitution is the supreme
law of the land overriding any past unfair practices in
family law cases which discriminated against certain
social classes in Zimbabwean society for example women.
(Sections 2, 80(3) of 2013 Constitution)
Due to its focus on gender equality; equality and non
discrimination for everyone regardless of social class or
status in every sphere of society, one’s gender, age, sex or
social status are no longer the key determinants in
ensuring success in cases e.g. for divorce, custody, sharing
of matrimonial property (Sections 17(2), 56, 80 & 81 of
2013 Constitution)
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Section 25 – Protection of the family;
“The state and all institutions and agencies of
government at every level must protect and foster the
institution of the family and in particular must
endeavour within the limits of the resources available to
them to adopt measures for the provision of care and
assistance to mothers, fathers and other family members
who have charge of children and the prevention of
domestic violence.”
Section 26: Marriage rights
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Section 19 (2) states that;
“The State must adopt reasonable policies and measures,
within the limits of the resources available to it, to
ensure that children— (a) enjoy family or parental care,
or appropriate care when removed from the family
environment;
Section 78 – every person who has attained the
age of 18 years has the right to found a family
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Publications/Sources>>Engels in “Origins
of the Family, Private Property & the State”
relied on the works of Morgan who studied
Native American Tribes.
(1) Primitive stage of the family.
Characteristics of the primitive family were
as follows:
Unrestricted sexual freedom within a tribe
Every woman belonged equally to every
man and every woman
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(2) Group Marriage
Group marriage - whole groups of men
and whole groups of women mutually
possessed one another so that there
was little room left for the green eyed
monster called jealous.
Characteristics of group marriage:
Promiscuous sexual relationships
including intercourse between parents
and children
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Consanguine Marriage
Next stage was the consanguine marriage
whose characteristics were as follows:
Multiple sexual partners were designated by
generation
All males & females in a generation within a
tribal group were husbands & wives of one
another.
Relationships were replicated through all
generations
Only direct ancestors and their progeny were
excluded from sexual intercourse with one
another
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Era of the Consanguine Marriage
(cont’d)
Most families matrilineal since maternity
was easy to prove rather than paternity
Rise
of
powerful
matriarchies/
matrilineal societies
Descent traced through the female
because there was difficulty in identifying
a biological father.
Jewish descent still traced through
mothers to ensure pure Jewish descent.
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Ultimately matrilineal forms of family were
overthrown and this marked the demise of
matriarchal law of inheritance replaced by
a patriarchal one.
According to Engel’s, this marked the
historical defeat of the female sex.
Men took command and women were
reduced to serfdom and child bearers.
Women were monogamous but not men.
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After women’s overthrow, men became
wealthy and wanted to bequeath their wealth
to their children.
Presumption was if there was female fidelity,
then descent could in theory be traced through
the male line.
However these theories are debatable because
we still have matrilineal societies of descent in
some parts of Zimbabwe e.g. some Shonas,
Zulus, Tongas and Lozis in Zambia
But there is also no evidence that patriarchal
values are absent from such societies.
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Engels in his publications made an erroneous assumption
that the monogamous system of marriage was the final
stage of family development and yet the family continues
to evolve & develop.
Other Explanations for the Family’s Evolution
Economic factors - >>> there was need to maintain
landholdings within a small number of interrelated and
mutually supportive individuals
Production – Family viewed as fulfilling the labour needs
adequate to maintain family enterprises
Biblical (Christian)-Family began with the marital discord
between Adam and Eve and the sibling rivalry between
Cain and Abel>>> First Family
Since the family is in a state of continuous mutation, it is
extremely difficult to describe.
THE FAMILY IS IN A STATE OF CONTINUITY AND
CHANGE!!!
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Murdock suggests the following indicators
as constituting a family;
“The family is a social group characterised by
common residence,
 economic cooperation and;
 reproduction.
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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”
Stephens:
 “The family is a social arrangement
based on marriage and the marriage
contract , including recognition of the
rights and duties of parenthood,
common residence of husband and wife
and children and reciprocal economic
obligations between husband and wife”
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Burgess and Locke 1945 have a broader
view of the family.
They describe it as;
“.....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 "
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Iwerierbor an African writer sees the
family as;
“......a group of persons related by blood and/or
marriage of which there are a wide variety of
types such as the nuclear family , the extended
family , the monogamous family , the childless
couple and the single parent family . The basic
family unit consists of a father and a mother
and their children, the so called NUCLEAR
family”
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Many of the criteria outlined earlier has been
challenged e.g. common residence , presence of
an adult male, union by marriage and close
economic cooperation .
Some husbands are migrant workers and in
some families children and parents work and
no longer pull resources together.
In reality families revolve around the woman
and her labour and that of the children being
very important.
In most African countries women are the
mainstay of the economy.
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This seems to be the most persistent basis for
beginning the process of family definition.
It consists of a married couple and their children.
Bryant sees the nuclear family as the basis of the
extended family.
This family is more common in the western world
and to certain extend the developing world.
Man is the breadwinner and the wife is full time at
home.
Most of the families are democratic with the father
consulting the mother.
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Parents are responsible for nurturing and
socialising the children.
However the socialisation function especially in
Western societies is drastically shifting away
from the family;
Parents are lacking commitment to childbearing
and the state through education is playing an
increasing role in the socialisation process.
Mothers are also going to work en masse and
children are being placed in day care and TV,
internet and other technologies are shaping
children's lives.
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The paradigm of socially approved sexual
relationships is also being questioned
because we now have one parent families,
the lesbian and gay families (illegal in
Zimbabwe).
We also have the cohabitation family.
In other jurisdictions couples who are in gay
and lesbian relationships are allowed to
adopt children.
New Constitution prohibits same sex
marriages!!!
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The single parent family mostly female headed is
being recognised as a distinct family form.
Women who fall pregnant out of wedlock are not
being shunned as they used to be.
The family unit may dissolve through divorce,
death, non -permanent sexual relations or even
deliberate choices.
One parent performs all the social parental
functions.
Due to the AIDS pandemic, we also now have the
phenomena of child and grandparent headed
homes.
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1. CONJUGAL EXTENDED FAMILY:
This is a family created through
polygamy or plural marriages the most
common of which is polygyny.
Polygamy refers to many mates of the
opposite sex while polygyny refers to a
man having more than one wife and
polyandry means a woman having
more than one husband.
Polyandry a rare phenomenon now.
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2. CONSANGUINEOUS EXTENDED FAMILY: This
is based on blood ties and may take the form of a
nuclear family combined with grandparents, aunts,
uncles, older and younger siblings plus cousins.
Connell suggests that this type of family is run by a
male elder with his wife and his son's household
under his authority>>> Male Patriarch
The wife is also under the authority of the family head
and that of her mother in law and older sister in
law>>> Female Matriarch
This type of family has got some economic and social
advantages.
If a parent dies, the children who are orphaned and
even aged grandparents are absorbed into the care of
members of the family.
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THREE GENERATION / STEM FAMILY OF
JAPAN AND JOINT FAMILY OF INDIA:
This is a family associated with the primary aim of
maintaining members’ way of life, family
possessions and occupation.
The continuity of the family is safeguarded.
Father becomes a Trustee of the family property
and fortunes for adult males.
A woman is traditionally regarded as property of
initially her father, her husband and after his death
of her sons.
The Amish family is peculiar to the USA, they have
their own way of life, currency and dress.
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Early writings focused on tribal influences.
According to Radcliffe Brown in the African context, two
persons are kin when one is descended from the other as a
grandchild is descended from a grandparent or when both
are descended from a common ancestor.
COGNATIC KIN / COGNATES = Descended From A
Common Ancestor Or Ancestress Counting Descent
Through Males And Females.
Kinship is thus based on descent.
AFFINAL KIN: Two persons are affinal kin when they are
linked directly or indirectly through marriage...
In Zimbabwe we lack literature on the kinship patterns of
non indigenous racial groups.
Bullock, Tackson, Holleman, Bourdillon are authors who
have studied the Shona but this was mostly rural Shona’s.
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Patrilineal society>>>Mutupo / totem/ chidawu
Chizvarwa: group of agnates of the first and second generation
descendants in the patrilene of man i.e. his sons, daughters and son's
children. This is the most fundamental family unit in Zimbabwe
Muzukuru – Traditional functions he performs e.g. arbitration
Marriage - A contract between two families. The whole of each family
group or clan becomes related/ affined to the whole of the other.
Varamu - Sexual intercourse is strictly forbidden.
Mukwasha / tezvara relationships - Mukwasha mukuyu hauperi
kudyiwa
Patrilineal society >>> Zanzi/enhla/amahole
Isibongo - surname / clan name by which an adult should be addressed
e.g. MaDube
Marriage/ mukwenyana>>> Ukuhlonipa - show respect to parent in
law of the opposite sex.
Mulamu- Should wife be barren , man entitled to claim a younger sister
Izihlobo - Relations covers all types of relatives, covers all types of
relatives, agnates , other agnates and affines
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COMMUTER FAMILIES:
These can be rural, urban or mine- rural.
Married and unmarried men temporarily left communal rural
homes in search of employment.
Wives and children remained in the village and the men would
send money to the village.
Men occasionally commuted to the rural area.
Such families are prevalent around mining towns.
RURAL - RURAL:
Children send to grandparents in areas where there are schools
Wife/ children live in one area and husband in another area
Wife with some children, husband with some children and other
children in an urban area with relatives.
Families like the above are necessitated by economic reasons
.Wives become defector heads of households and take on all
responsibilities .HIV/AIDS is a threat in these types of families.
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REPOSITORY FAMILY
A temporary arrangement where individuals for one reason or another
take up residence with relatives or a relative who but for the presence of
the repositees may have been in a different family situation.
Riposetees may be blood kin on the paternal or maternal or affinal.
Relatives may be stored because they are in difficult circumstances.
The repository family has to bear the daily costs of maintaining the
ripostes who may come in large numbers.
Newly married couples may also be expected to take in a lot of
repositees.
Repositees including non marital grandchildren, returnee daughters
with or without children, AIDS orphans, elderly relatives.
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COMPOSITE FAMILIES
Prevalent in small scale farming areas.
This is where 3 or more generations are
living
together
on
one
family
landholding.
Live in separate households which are
close together but some autonomy is lost
to wider decisions.
Also adequate labour is available.
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CHILDREN BORN OUT OF WEDLOCK - These face
many problems. When mothers marry men who do not
want children as part of the package, fathers deny
paternity, men marry women who may not want step
children and these end up as ripositees within the
extended family.
DIASPORA/ INTERNATIONAL FAMILY
This form of family has not yet been fully researched
on because it’s a relatively recent phenomena.
Many Zimbabweans have migrated mostly for
economic reasons but sometimes this breaks up the
traditional family unit as we know it, e.g. father may be
in the UK, mother in Zimbabwe, children at college in
South Africa.
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Substantive legal texts lack definition of a family.
Osborne’s dictionary offers a definition of the familia of
Roman law but not of the modern family.
A family may include: All persons who were subject to the
potestas of the same individual whether his children,
grandchildren and so on or unconnected in blood e.g. Slaves.
all descendants of the same ancestor
all persons connected by agnation
the slaves of a paterfamilias
This presupposes power relations.
Marriage is introduced in family and the meaning of family is
closely associated with marriage and in most legal systems
family is viewed as a consequence of marriage.
In Roman law “Patria potestas,” is a Latin maxim meaning:
“power of a father.” In Roman family law, this was power
that the male head of a family exercised over his children and
his more remote descendants in the male line, whatever their
age, as well as over those brought into the family by adoption.
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1994 was declared the international year of the family.
Looking at the purview of family law, it is apparent
that the State plays a role in the area of family law.
We have the traditional separation of powers concept
in constitutional law i.e. the judiciary, legislature and
executive.
Starting from the colonial era, the legislature has
passed a lot of laws on family law which we shall deal
with as we go along.
Marriage is considered from a legal point of view as
the basis of the formation of a family.
It is also apparent that there is conflict between
customary and general law e.g. lobola is an important
stage in the process of customary law marriage but is
not required to constitute a valid civil marriage
between Africans.
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The Act still retains a provision for a certificate to be
issued stipulating that lobola has been paid even in
civil marriages.
A look at the old marriage certificates will reveal that
there was actually a portion reserved for writing down
the consideration i.e. lobola paid.
Further, almost all marriages between Africans
commence with paying lobola though not all of them
are subsequently registered.
Lobola is viewed as being much more binding and
significant than formal registration though no hard and
fast rules of what constitutes a full lobola ceremony.
It differs from tribe to tribe
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The Act does not define family but has
a section dealing with dependants who
may benefit from a deceased person’s
estate.
In reference to the day to day living,
however, the Act does not encompass
what or who may be called family.
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Maintenance for example extends
beyond formal recognised links to those
who have created a relationship by
reproduction e.g. a married man
impregnates his girlfriend and is sued
for maintenance.
Whilst the man is legally liable to
maintain the child that does not mean
that he in now husband and wife with
his girlfriend.
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Other criteria used to define the family are through
blood, kinship, reproduction and marriage.
These seem to take precedence when a dispute is to be
resolved using the law e.g. a man who voluntarily
supports a woman’s out of wedlock child (even in a de
facto relationship) to satisfy the obvious moral ,
emotional and economic interests of the child; will
have no say in the welfare of the child in the courts.
However in the informal arena the man may have
considerable influence on the welfare and future of
both the child and the mother.
Both the pre and post colonial legal structures have
sometimes imposed superficial transformations of the
family and nowhere are these more important than in
marriage laws.
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COMPULSORY READING:
Engels in “Origins of the Family, Private
Property & the State” Available at:
https://readingfromtheleft.com/PDF/Eng
elsOrigin.pdf (easier to read version)
Continuity and change - The family in
Zimbabwe by WLSA
Reconceptualising the family in a changing
Southern African environment – Mvududu
et al (WLSA)