Samantha Nhende v Andrew Zigora

The parties entered into an unregistered customary law union on 1 August 2010 and dissolved it in February 2021. During the union, the appellant was employed as a legal officer earning approximately US$2000 per month, while the respondent earned US$5000 per month. Prior to the union, the appellant owned a stand in Manresa Suburb and the respondent owned a stand in Madokero Suburb. During their union in November 2015, the parties moved into a rented flat in Avondale where the respondent paid rentals of US$550 and utilities while the appellant was responsible for food, clothes and house maintenance. The parties agreed to purchase property in Mabelreign and secured a mortgage home loan through the appellant's bank, with title in the appellant's name. The respondent's Madokero stand was used as collateral for the mortgage. The respondent made deposits into the appellant's bank account, payments for home insurance, and contributions towards renovations. The parties also shared medical bills for fertility procedures. The relationship ended after the medical issues arose.

• Whether there was a tacit universal partnership between the parties in an unregistered customary law union
• Whether the court a quo properly exercised its discretion in dividing the property at a ratio of 55% to the appellant and 45% to the respondent
• Whether the doctrine of tacit universal partnership applies to unregistered customary law unions
• Whether general law principles can supplement customary law where customary law would lead to injustice
• Whether the Madokero property should have been considered in the distribution of assets

The appeal was dismissed with no order as to costs.

The binding legal principles established are: (1) A tacit universal partnership can exist in an unregistered customary law union where parties pool their resources for their common good and the acquisition of property is carried on for their joint benefit. (2) The requirements for establishing a tacit universal partnership are: (i) each party brought something into the partnership, and (ii) the acquisition of property is carried on for the joint benefit of the parties. (3) Under section 3(1) of the Customary Law and Local Court Act, general law applies where the application of customary law would not conduce to the attainment of justice or where customary law is silent on the matter. (4) By pleading tacit universal partnership and unjust enrichment, a party effectively pleads for the application of general law. (5) Where elements of a tacit universal partnership have been established, useful guidance may be found in section 7 of the Matrimonial Causes Act in considering division of property, even though the Act does not directly apply to unregistered customary law unions. (6) Property acquired independently prior to the formation of a tacit universal partnership is not subject to division under the partnership principles. (7) An appellate court will not interfere with the trial court's exercise of discretion in dividing partnership property unless the exercise is unreasonable, procedurally or legally wrong.

The Court made observations regarding costs in matrimonial matters, noting that there is generally no justification for awarding costs in such disputes. The Court also noted approvingly the principle articulated in earlier cases that a husband could not have successfully conducted his business if his wife had not cooked dinner and minded the children, emphasizing the value of indirect domestic contributions to a partnership. The Court observed that the parties' text messages bore evidence of collaborative effort and mutual consultation on every detail relating to acquisition and renovation, reflecting modern evidentiary realities in relationship property disputes. The Court also made broader observations about the century-long coexistence of customary law and Roman-Dutch law in Zimbabwe, noting that legislation has consistently provided that where customary law rules are found inapplicable to the just decision of a matter, resort should be had to common law principles.

This case is significant in Zimbabwean family law as it confirms the application of the tacit universal partnership doctrine to unregistered customary law unions where the justice of the case requires it. The judgment demonstrates the interplay between customary law and general law under section 3(1) of the Customary Law and Local Court Act, establishing that general law principles can supplement customary law to prevent injustice. The case provides important guidance on how courts should approach property distribution in unregistered customary law unions by recognizing both direct and indirect contributions to jointly acquired property. It also confirms that section 7 of the Matrimonial Causes Act can provide useful guidance (though not direct application) when dividing property in tacit universal partnerships arising from customary law unions. The judgment reinforces the principle that marriage-like relationships characterized by pooling of resources and joint contribution toward common goals can give rise to partnership rights regardless of the formal legal status of the union.