Lavreil Elizabeth Mbaraidzo v Yosia Jose

The plaintiff and defendant lived together in the manner of husband and wife from 2005 under an unregistered customary law union. No children were born of the union. On 10 May 2016, the plaintiff sued the defendant seeking dissolution of the customary law union (or alternatively dissolution of a tacit universal partnership), distribution of property allegedly acquired during the subsistence of the union, and costs. The defendant contested the claim, arguing that parties were merely in a long period of concubinage which did not constitute a customary law marriage, and that the plaintiff had not fulfilled the requirements for a tacit universal partnership claim. The defendant raised a point in limine that there was no properly pleaded cause of action.

• Whether an unregistered customary law union on its own constitutes a cause of action for distribution of assets acquired during cohabitation
• Whether the plaintiff properly pleaded a recognized cause of action at general law (such as unjust enrichment, tacit universal partnership, or joint ownership)
• Whether the pleadings disclosed sufficient facts to support any alternative cause of action
• Whether defective pleadings could be cured by evidence at trial

The plaintiff's claim was dismissed for failure to disclose a recognized cause of action. No order regarding costs was explicitly stated in the judgment.

The binding legal principle established is that: (1) An unregistered customary law union is not, on its own, a cause of action at common law for the distribution of assets acquired during cohabitation; (2) Where a party to an unregistered customary union seeks distribution of assets, a recognized cause of action must be properly pleaded, such as unjust enrichment, tacit universal partnership, or joint ownership; (3) The pleading must contain factual assertions (not mere conclusions or legal submissions) that establish the elements of the chosen cause of action; (4) Defective pleadings that fail to disclose a proper cause of action cannot be remedied by evidence led at trial - the defect must be cured by amendment before trial; (5) Courts should not treat unregistered customary unions as if they were marriages subject to the Matrimonial Causes Act for purposes of asset distribution.

The court made several non-binding observations: (1) It repeated the exhortation from Feremba v Matika to all trial magistrates that where one party to an unregistered union seeks distribution of joint estate, a justification for not applying customary law must be made using choice of law considerations listed in s 3 of the Customary Law and Local Courts Act; (2) The court noted that the plaintiff's legal practitioners appeared to be under the erroneous impression that the union was recognized as a marriage under the Matrimonial Causes Act, hence their reference to grounds such as "irretrievable breakdown" and seeking dissolution on a "just and equitable basis"; (3) The court observed that in other cases (T Chauraya v P Makokoro HH 362-13 and V Jokonya v T Pavarivega HH52-17) where similar defects existed, the matters proceeded because amendments were made to cure the pleading deficiencies; (4) The court lamented that legal practitioners had not heeded the clear guidance provided in previous judgments regarding the need to properly plead recognized causes of action in unregistered union cases.

This case reinforces the crucial principle in Zimbabwean law (applicable to understanding South African jurisprudence on similar issues) that an unregistered customary law union does not, by itself, constitute a cause of action for the distribution of assets. The case emphasizes the importance of proper pleadings in matters involving unregistered unions, requiring parties to plead recognized causes of action such as unjust enrichment, tacit universal partnership, or joint ownership, supported by adequate factual allegations. It serves as a stern warning to legal practitioners to heed judicial guidance on pleading requirements and demonstrates that defective pleadings cannot be cured merely by leading evidence at trial. The case contributes to the jurisprudence distinguishing unregistered customary unions from registered marriages under matrimonial legislation.