An emotional investment is usually one of the most sensitive and socially divisive relationship when its key pillar of TRUST is abused.
We have grown to live with the constant stories of unfaithfulness, extra marital affairs and sometimes incestuous scandals that rock our communities on a regular basis. Based on the regularity of this inauspicious vice, there is actually a category of individuals, predominantly female who are colloquially known as the “Small House”. There is no single correct definition of a small house but a commonly accepted attempt to define would suggest that a small house is basically an unmarried individual who engages in an immoral extra marital affair punctuated by significant obligations for the welfare of the beneficiary in exchange of the provision of a unique and polished romantic relationship with another individual. Most small houses are actually long term relationships who receive equal, if not better treatment to the custodian of the primary relationship. Most small houses are usually aware of the fact that they are engaging in an extra marital affair but persist nonetheless. Amidst the chaos and drama of the existence of small houses, there are legal consequences that arise as a result of infidelity, promiscuity or adultery. This article will attempt to enlighten and caution the participants of these emotive relationships and indicate the legal implications of these relationships over a varying array of common question scenarios.
IS A SMALL HOUSE LEGAL?
This question requires a preemptive approach of indicating that the law can either create positive or negative obligations, that is to say the law can direct you to do or refrain to do something. The law will also provide various consequences to any illegal conduct. These consequences can either be criminal consequences or civil consequences. It is important to bust the myth that all illegality amounts to a criminal offence. There are however circumstances to which the law is silent. It neither tells you to do nor does it tell you what not to do. This therefore means that something can both be neither legal nor illegal as well. This will be relevant as this article will progress for certain types of relationships. Going back to the question, the answer that most people will be interested in, is that a small house ought to be illegal and to some relationships this is correct. I will outline the various relationships that should concern citizens as follows:
(a) A registered Civil marriage
At law, a relationship solemnized under Part V of the new Marriages Act [Chapter 5:15] is strictly a monogamous relationship. Any extra marital affair that may arise after the solemnization and registration of a civil marriage is therefore illegal to the extent of interference with a valid monogamous union. Once an individual is married, they are off the market.
(b) A registered Customary law marriage
At law, a relationship solemnized under part IV of the new Marriages Act [Chapter 5:15] is a potentially polygamous one. This means that only the male is potentially allowed to introduce a further woman or as many more women as he desires. The wife in such a union does not share the same privilege and any attempt by her to introduce a new man will amount to infidelity. For the male therefore, a small house will be easy to defend as it is actually anticipated even though not formally solemnized as a marriage. The author however advises that formalization is very important to avoid unnecessary contestations i.e for inheritance purposes.
(c) Unregistered Customary Law Union
An unregistered customary law union (UCLU) simply put is, a relationship in which the male has paid bride price according to customary rites to secure the woman’s hand as a lifetime partner. This union was not a formal marriage recognized at law prior to the promulgation of the Marriages Act [Chapter 5:15]. The union was only recognized for the purpose of limited legal occasions such as under the administration of deceased estates. It now appears that through section 17 of the new Marriages Act, there is a requirement for parties under an unregistered customary law union to register such union with the Registrar of marriages who will issue the parties with a certificate of registration of a customary law marriage. The net effect of this development is that, after registration, the UCLU will have graduated to a customary law marriage. It will therefore not be illegal to have a Small house under this particular relationship, it can only be immoral. The reason being, the customary nature of the relationship makes it potentially polygamous.
(d) Civil Partnerships
The modern world has come with it modern trends. One such trend involves the escalation of a relationship into a cohabitation setup where for all intents and purposes the male and female participants live as husband and wife. There was previously no legal instrument that provided for the factual scenario of cohabitation. There is now a legal term known as a ‘Civil Partnership’ which has been brought by section 41 of the Marriages Act [Chapter 5:15] and it conspicuously only speaks to the ability of spouses to such a partnership having their relationship terminated by a competent court for an equitable distribution of assets of the civil partnership. The Act is silent on the legal steps of the formation of such relationship.
The author’s perception of this provision of the new Marriages Act is to the effect of clearly being permissive of the colloquial ‘small house’ as the Act clearly acknowledges that the Civil Partnership may have one or both of the spouses legally married to someone else. In this regard the Act only tries to protect the property of a person in a valid marriage from being put up for distribution at the demise of the Civil Partnership. One can also say that the term Civil Partnership is actually a substitution of the term ‘Small House’ as it is an acute representation for all that a Small house is, albeit with a form of legal protection.
(e) Boyfriend and Girlfriend
This relationship has become increasingly difficult to define. I will I include this last type of relationship for completeness purposes. I have received strange questions before about what the law says about a cheating boyfriend or a cheating girlfriend. The answer is that the law does not concern itself with that nature of relationship. There may be other by products of that relationship that the law may address i.e if there is violence/assault, malicious damage to property, breach of promise to marry, rape, a minor child for the purpose of maintenance and other sexual offences. In the absence of any of these other legal issues the relationship receives no acknowledgment nor protection from the law.
LEGAL REMEDIES TO APPROPRIATE SCENARIOS INVOLVING A SMALL HOUSE.
- Adultery Damages
Adultery damages are a form of compensation under civil law (common law) where the individual who has come to interfere (Small House) with a monogamous relationship by engaging in an adulterous relationship is ordered to compensate the injured party. The claim seeks to compensate for the contumelia and loss of consortium. Adultery damages have always had divided opinion amongst legal scholars because they do not punish the offending party in the solemnized relationship but rather the third party who has had the immoral affair with someone in a relationship. It has been argued that this protection afforded to a cheating partner is unfair and hence the damages themselves must be scrapped from our law as they are inefficient. The chances of the offending spouse repeating the adultery with different individuals remains high as there is no restraining mechanism. It is also highly likely that even if damages are ordered to be paid, the ‘small house’ will still turn to the illicit partner for the financial resources which may worse still come from the common pool of matrimonial property. This is basically adding insult to injury.
Divorce is the one sure way of ridding yourself of a partner who entertains Small Houses. Divorce is basically the termination of the marriage relationship such that the status of the divorcing parties changes from married to single. The law expects parties to divorce after they can satisfy to a competent court that the relationship has irretrievably broken down. Divorce is final in nature and therefore must not be treated as a mediation technique to influence changed behavior.
- Drafting a clear Ante-nuptial agreement
Small houses are notorious for draining financial resources from a marriage for their personal gain. To limit the financial outflow it will be important that each spouse has control of the joint matrimonial assets and more importantly the joint cash accounts/bank accounts. When there is a joint ownership of assets, there is a legal obligation created to account for the use and utilization of financial resources. In Zimbabwe, a clear ante-nuptial contract can have clauses with an approval system detailing how funds are utilized and when. Marriages in Zimbabwe are ordinarily out of community of property, which would mean that parties would be personally responsible for their profits and losses however an ante-nuptial agreement will reverse that position, making the profits and losses jointly shared. This remedy aims at being prohibitive and will not outrightly stop a willing spouse from finding a small house. It will make the process significantly complicated for them however. It may actually be advisable to include stiff consequences on property distribution in the event that the marriage terminates as a result of the unfortunate existence of a Small House. The only limitation with this remedy is that it must be entered into before solemnization of the marriage. The author advises the engagement of a legal practitioner when intending to enter into an ante nuptial contract.
The small house is definitely not desirable for those who have to be on the side that loses on the benefits meant for monogamy. The small house is however a reality we face, live with and can deal with as suggested above. The controversy in regulating the small house is making issues the more open ended and we can only hope that in the future there may be more direct legislation that deals with this inconvenience.