Shingisai Maryln Nyamukusa v Gilbert Karenga Maswera

The plaintiff and defendant began a relationship when she was 23 and he was 58. He was married at the time. They had their first child, Rosely Mufaro Maswera, on 12 March 2007. The defendant later divorced his wife and paid lobola for the plaintiff in May 2010, establishing a customary union. After paying lobola, the defendant asked the plaintiff to sign an ante-nuptial contract in Masvingo, which she refused, stating she wanted a settlement similar to what his ex-wife received. The defendant claims he then realized she was not marriage material and attempted to return her to her parents three times, but she returned each time claiming she had nowhere to go. They had a second child, Cherielyn Maswera, on 19 January 2014. The defendant built a new cottage on his Mandara property and moved into it, leaving the plaintiff and children in the dilapidated original cottage. The plaintiff claimed distribution of property based on a tacit universal partnership and unjust enrichment. The defendant counterclaimed for her eviction from the Mandara property.

• Whether a tacit universal partnership existed between the parties requiring distribution of property
• Whether the defendant would be unjustly enriched if the plaintiff did not receive a share of property acquired during cohabitation and customary union
• Whether the plaintiff made direct or indirect contributions to the acquisition of immovable and movable property
• Whether the defendant was entitled to evict the plaintiff from the Mandara property
• Whether the court as upper guardian should consider the best interests and constitutional rights of the minor children in relation to eviction

1. By consent: plaintiff awarded white leather lounge suit, 2-plate stove, one-door small fridge, single bed, television set, glass casserole dish, stainless steel pan, sunbeam blending machine; defendant awarded a bed and Mercedes Benz. 2. Plaintiff's claim to Lot 14A Mandara and all other movable assets dismissed. 3. Defendant's counterclaim for eviction dismissed. 4. Each party to bear own costs.

A tacit universal partnership requires proof of: (a) each partner bringing something into the partnership; (b) joint benefit; (c) profit-making objective; and (d) legitimate agreement plus intention to partner. Mere cohabitation and customary union do not establish a tacit universal partnership. An unjust enrichment claim requires proof that the claimant contributed something and would be impoverished if the defendant retains the benefit. Where a party subsidized the other's business ventures and elevated their economic status, no unjust enrichment can be established. The court as upper guardian of minor children has a constitutional mandate under s 81(2) and (3) of the Constitution to protect children's rights to parental care and shelter, and cannot grant eviction of a custodial parent without ensuring adequate arrangements for children's accommodation consistent with their current standard of living and the responsible parent's means.

The court observed that the plaintiff appeared to mistake her entitlements under a customary union for those of a wife under a registered marriage as provided in the Matrimonial Causes Act [Chapter 5:13]. The court noted the plaintiff's pattern of dishonesty and working out answers rather than speaking from knowledge demonstrated she was not a reliable witness whose word could be accepted without corroboration. The court commented that the plaintiff gave the impression of a greedy woman seeking self-enrichment rather than legitimate entitlement. The court noted that quarrels between parents should not adversely affect children's constitutional rights. The court observed that the defendant's attitude that the plaintiff should contribute to children's accommodation expenses was irresponsible given that evidence demonstrated she had no means and was totally dependent on him.

This case is significant in Zimbabwean family law for: (1) clarifying the strict requirements for establishing a tacit universal partnership, particularly the need for credible evidence of pooled resources and joint profit-making ventures; (2) demonstrating the court's scrutiny of unjust enrichment claims and requirement for proof of actual contributions rather than mere assertions; (3) importantly, affirming the court's constitutional role as upper guardian of minor children and prioritizing children's rights under s 81 of the Constitution over property rights disputes between parents; (4) establishing that eviction of a custodial parent cannot be granted without adequate arrangements for children's accommodation at a standard commensurate with the responsible parent's means; and (5) illustrating how credibility findings impact property distribution claims in customary union dissolutions.