Introduction
The topic of live-in relationships is highly debated as it is viewed by the older and traditionalist generation as a taboo whilst the younger generation views it as a step to a progressive world. As much as it is debated in society, the situation is the same within the legal system. There is no particular legal definition of live-in relationships within the legal frameworks of India and Zimbabwe nor are there specific statutes governing the same. Thus, for the scope of this article, a specific meaning has been embraced to provide a contextual definition.
It may be defined as a relationship between two consenting adults cohabiting together without being legally married to each other, sharing physical and emotional bonds, and other domestic responsibilities including children (if any). The live-in partners share a residence and engage in a prolonged commitment often akin to marriage but without legal obligations like those found in a legitimate marriage. Back then, these relationships were stigmatized, regarded uncustomary, and frowned upon by the aforementioned societies because of their nature, however, they have become prevalent among the younger generation. This article commences with a comparative study of the live-in relationship between India and Zimbabwe, looking into the legal frameworks that govern these relationships in both nations.
The Legal Framework Surrounding Live-in Relationships in India
The evolution of live-in relationships marked a threat to the existing social norms, values, and the sanctity of the marriage institution. The younger generation feels that engaging in live-in relationships offers them personal liberty. “It is easier walking out of a live-in relationship than a marriage”, has become the motto of the people in live-in relationships as they do not want to commit due to the fear of potential separation in the future. However, traditionalists still have a hard time accepting this nature of relationship. Despite the unwillingness of society to accept these unions and the unavailability of specific statutes governing such relationships, the courts in India have acknowledged that such relationships may be deemed akin to marriage under certain conditions. The courts have ruled that such relationships are not illegal.
A man and woman can live together even if they are not married, according to the Allahabad High Court’s observation in Payal Sharma v. Nari Niketan, 2001. It further expressed that, although society may view this as an illicit act, it is not against the law. Morality and law are distinct concepts. Agreeing with this, in S. Khushboo v. Kanniammal & Anr.,2010, the Supreme Court of India affirmed that a live-in relationship between two adults who are not legally married could not be interpreted as a transgression. This acknowledgment protects the parties involved in these relationships.
In addition, the Parliament of India enacted the Protection of Women from Domestic Violence Act of 2005 to protect women including those in live-in relationships from domestic violence. Section 2(f) of the aforementioned Act defines a domestic relationship as “a relationship between two persons who live or have at any point in time, lived together in a shared household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.” Consequently, the expression “nature of marriage” has been interpreted by the judiciary per the stipulations outlined in the above provision, thereby enabling females in cohabitating relationships to pursue remedies under this law.
In pursuance of this provision, the Supreme Court in Indira Sharma v. V.K.V Sharma, 2013 outlined the conditions that must be fulfilled while determining whether a relationship falls within the purview of the expression “relationship in the nature of marriage” viz, the duration of the relationship, shared household, financial arrangements between them, whether there is or has been a sexual relationship, public perception and outward aspects of their relationship, commitment to each other, children (if any), and, property arrangements.
Moreover, the Supreme Court not only considered the individuals in this relationship but also their offspring. In Tulsa v. Durghatiya, 2008, it was held that the child born out of such a union would not be regarded as illegitimate if the parents have cohabited and shared residence for a considerable amount of time.” Affirming their eligibility to inherit their parent’s property (if any), the court held in Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., 2010 that the offspring of this relationship is not entitled to any Hindu ancestral property.” In a nutshell, the Indian legal system aims at ensuring that no one is left out.
The Legal Standing of Cohabitation in Zimbabwe
Live relationships, referred to as cohabitation in Zimbabwe have become prevalent across all generations however undermining the importance of the traditional marriage system. The evolution of cohabitation in Zimbabwe is attributed to factors such as modernization, exposure to diverse perspectives, the need to take care of children from previous marriages (in the case of divorcees, widows, and widowers), the need to assess compatibility before rushing into a formal marriage commitment, just but to mention a few. Women, in particular, view this as a means of freedom contrasting with the societal perception of a wife being a husband’s property. The occurrence of unwanted pregnancies in young girls also causes a drive to cohabitation due to shame and fear of social stigma associated with having a child out of wedlock.
Cohabitation, popularly known as “kuchaya mapoto” is viewed as immoral by the traditionalists, and the women involved in this are often seen as lacking proper home training. While advocates of live-in relationships argue that it is a progressive approach to relationships, critics raise concerns about the potential erosion of traditional marriage values and norms. Similar to the older generation, the Zimbabwean legal system does not recognize live-in relationships in entirety. It merely perceives the parties involved as two staying together thereby denying them the privileges equivalent to those of married partners. Because such relationships lack legal backing, the parties involved may experience uncertainties when it comes to issues of maintenance in case of separation, and/or inheritance in case of death.
In Zimbabwe, women in cohabiting relationships suffer more if and when their partner dies in terms of acquiring property because in most cases the man’s family requires a marriage certificate to prove that she was married to their son in his lifetime for her to acquire property. This means that whatever property she might have helped him to acquire, she will not get it because their union is neither customary nor civil. Thus, over time, the Zimbabwean legal system has evolved to protect the property rights of partners in live-in relationships. For this purpose, an individual in a live-in relationship is required to prove in the Court of law that a Tacit Universal Partnership existed between them. A Tacit Universal Partnership refers to when a couple is cohabitating or in a civil partnership and not legally married. Mtudo v. Ndudzo, 2000 case laid down the essential elements for a tacit universal partnership which were also reiterated in Nyamhongo v. Mamvosha & Anr., 2023 namely:
- “Each of the parties must bring something into the partnership or must bind himself or herself to bring something into it, whether skill, money, or labor;
- The business is to be carried out for the joint benefit of the parties; and
- The object of the business should be to make a profit.”
In Melo v. Kandibero, 2023, addressing the question of whether or not the plaintiff and defendant were in a tacit universal partnership held that, “an unregistered customary law union is in the nature of an everyday marriage in terms of reciprocal obligations and expectations by the couple even if its recognition is curtailed in terms of the law.” Therefore, through The New Marriages Act [Chapter 5:15], 2022, a civil partnership is now recognized in the Zimbabwean legal system under clause 1 of section 41 of the abovementioned Act as, a relationship between a male and female who (i) have both attained the majority age of eighteen years, (ii) have cohabited without being legally married to each other and, (iii) are not related within the prohibited degrees of affinity or consanguinity as outlined in section 7, and (iv) considering all the aspects of their relationship, live together as a couple on a genuine domestic basis.
To establish the parties’ entitlements and responsibilities upon termination of the relationship, this will be considered a civil partnership. For this reason, The Matrimonial Causes Act [Chapter 5:13] provisions under sections 7 to 11 will apply with appropriate changes. Therefore, upon separation, the parties can divide their property as per the Matrimonial Causes Act [Chapter 5:13], which provides for a fair distribution of assets between partners at the dissolution of their marriage or partnership taking into account factors such as the existence of a sexual relationship, the length of the relationship, property ownership and procurement, and direct and indirect contributions. Hence, indicating progress in the Zimbabwean legal system in terms of inclusivity despite marital status.
Discrimination against the offspring of a live-in relationship in terms of succession has also been prohibited. Back then, they were regarded as bastards, illegitimate, or mwana wemusango, but the judiciary realized that it would be unjust to punish the child for their parent’s actions. In a landmark case of Bhila v. Master of High Court & Ors, 2015, a ruling was given relying on s. 56 (3) of the Constitution of Zimbabwe. It was held that “in the Zimbabwean context the question of whether or not children born out of wedlock can inherit ab intestato from the estate of their father; is answered by provisions of the Constitution of Zimbabwe Amendment (No. 20) Act of 2013 which guarantees the right of every person to be free from unfair discrimination based on nationality, race, religion, class, sex, gender, marital status, disability, birthplace, ethnicity, color, tribe, age, economic or social status, whether born in or out of wedlock.”
Comparison and Conclusion
Despite the differences between the culture and legal system in India and Zimbabwe, there also exist certain similarities in these nations. The sanctity of marriage is placed in high regard in both nations. Urbanization is among the factors that are influencing the change in relations between both nations. The negative societal attitude towards live-in relationships exists in both countries. However, despite the conservative stance on live-in relationships, both countries have so far shown commitment to protecting the rights and well-being of the parties involved along with legitimizing the offspring of these relationships. Even though there is no specific legislation governing live-in relationships in India, the Courts have recognized them as valid, thereby protecting women in such relationships under domestic violence and maintenance laws. On the contrary, although the Zimbabwean legal system has recognized the offspring as legitimate and provided property rights to cohabiting parties, it does not explicitly recognize the relationship as valid. Consequently, this leaves individuals in these relationships legally vulnerable.
References
- Payal Sharma v. Nari Niketan, AIR 2001 All 254
- S. Khushboo v. Kanniammal & Anr., AIR 2010 SC 3196.
- Protection of Women from Domestic Violence Act of 2005
- Indira Sharma v. V.K.V Sharma, 2013 Tulsa v. Durghatiya, (2013) 15 SCC 755
- Tulsa & Ors. v. Durghatiya & Ors., AIR 2008 SC 1193
- Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., (2010) 11 SCC 483
- Tapiwa Mujaji, Reflection on Tacit Universal Partnership and The New Marriages Regime in Zimbabwe, Mondaq, Aug. 26, 2024, 4:02 PM), https://www.mondaq.com/family-law/1226288/reflection-on-tacit-universal-partnership-and-the-new-marriages-regime-in-zimbabwe
- Mtuda v. Ndudzo, (2000) 1 ZLR 710 (H)
- Melo v. Kandibero, (2023) ZWHHC 199
- Marriages Act [Chapter 5:15], 2022, s. 41, No. 1, Acts of Parliament, 2022 (Zimbabwe).
- The Sunday Mail, https://www.sundaymail.co.zw/no-more-bastards-all-kids-have-rights (last visited Aug. 8, 2024)
- Bhila v. Master of the High Court & Ors., (2015) ZWHHC 549.
