Distribution of property at the termination of de facto unions (marriages by cohabitation/repute) in some African countries

Abstract

Abstract Many African countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 16(1) of CEDAW provides for, inter alia, the right to equality in a marriage. The drafting history of Article 16 of CEDAW shows that the delegates agreed that the whole provision was applicable to women whether or not they were married. In its General Recommendation No. 29 on Marriage and Family Relations, the CEDAW Committee provides interpretive guidance for states on Article 16 and, inter alia, highlights the economic hardships that women face at the termination of de facto unions or relationships (marriages by cohabitation) and urged state parties to protect the economic rights of women in such relationships. African countries have approached the issue of de facto relationships in different ways. These approaches have also determined the manner in which the economic rights of parties to these relationships are protected. In some countries such as Malawi and Tanzania, legislation recognizes such unions. In Kenya, although these unions are not recognized by legislation, they are recognized by courts. Courts have also recognized some economic rights of parties therein. In Seychelles, a ‘hybrid’ approach has been followed in terms of which these rights are protected in both legislation and case law. In Uganda, South Africa, Zambia, Ghana, Zimbabwe, Lesotho, Swaziland, and Rwanda, de facto unions are neither recognized in legislation nor in case law. However, courts have invoked principles from other branches of law such as the law of equity (constructive trusts and proprietary estoppel), partnerships and the right to property to protect the economic rights of the parties in these unions. In this article, the author demonstrates the approaches taken by courts in countries where de facto unions are not recognized by legislation (Uganda, South Africa, Zambia, Ghana, Zimbabwe, Lesotho, Namibia, Eswatini (Swaziland), and Rwanda) to protect the economic rights of the parties when these relationships are terminated.