This article is part of a series of articles on Pensions Law in Zimbabwe. The series is aimed at highlighting the changes brought about by various new legislative frameworks within which pension funds must operate. This article looks at the different types of marital regimes and their impact on pension benefits as it relates to a spouseโs pension and the death of a member. The marital status of a member is a very important factor to be taken into account in the administration of a pension fund. On the 27th of May 2022, the Marriages Act (Chapter 5:17) was passed into law. This new marriagesโ law came into operation on the 16th of September 2022 [1]. This law has brought a change to the marriage laws in Zimbabwe. The new law seeks to introduce various new types of โmarriagesโ and modifies existing concepts within the marriages law framework. The coming in of the marriages law also brings retrospective effect to SI 323 of 1991 as regards unregistered customary law unions. To properly administer benefits, pension funds, board members, principal officers and employers need to be clear on the rights and responsibilities of spouses and other dependents.
Misconceptions and complications related to marriages law often leave employers and pension funds bewildered about employee benefits for spouses and other dependents. To properly administer member benefits, pension funds need to be clear on the rights and responsibilities of spouses. For pension funds, the need to verify a marriage is most likely to arise when a member dies, and a surviving spouse claims the benefits. The marital status of a member is a very important factor to be taken into account in the payment of a pension benefit. It is important to determine whether a deceased member was married and had a spouse for the disbursement of benefits.
On the 2nd of September 2022, a new pensions law, the Pension and Provident Funds Act (Chapter 24:32) was gazzetted. This new law came into operation on the same date and repealed the existing Pension and Provident Funds Act (Chapter 24:09). The new Pension and Provident Funds Act (Chapter 24:32) does not define a marriage, a spouse or a dependent. Statutory Instrument 323 of 1991 Pension and Provident Funds Regulations, 1991 provided the definition of a marriage, spouse and a dependent. Statutory instrument 323 of 1991 being a regulation that was promulgated in terms of the now repealed Pension and Provident Fund Act (Chapter 24:09) fell away on the 2nd of September 2022.The Pension and Provident Funds Act (Chapter 24:32) in section 62 provides for the promulgation of regulations by the Commission (IPEC). To date no regulations have been gazetted that present themselves for examination on the subject of marriages, spouses and beneficiaries. Thus, what obtains is that reliance on the definitions of a marriage and surviving spouse is premised on the new Marriages Act Chapter (5:17).
STATUTORY INSTRUMENT 323 OF 1991, PENSION AND PROVIDENT FUND REGULATIONS
In order to appreciate the impact of the new marriages law, reference must be made to the position that pre-existed at law as set out in the pension and provident fund regulations. Statutory instrument 323 of 1991 are regulations that were promulgated in terms of the now repealed Pension and Provident Fund Act [Chapter 24:09].
Section 2 of SI 323 of 1991 in its interpretation provided definitions to โmarriageโand โsurviving spouseโ as shown below;
โmarriageโ means โ
a marriage solemnised under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or an unregistered customary law marriage, and the words โhusbandโ, โmarriedโ, โspouseโ โsurviving spouseโ โwidowโ, โwidowerโ and โwifeโ shall be construed accordingly;
โsurviving spouseโ means โ
(a) a widow of a deceased member, including the widow of a polygamous person; and
(b) a widower of a deceased female member;
The definitions of a marriage and surviving spouse as shown above are thus premised on the marriages law prior to the new Marriages Act Chapter (5:17). Thus, effective the 16th of September 2022, any references in pensions law to marriages should be construed in terms of the new marriages law.
A brief explanation of the various marital regimes and the impact on retirement benefits is discussed below.
TYPES OF MARRIAGES IN ZIMBABWE UNDER THE NEW MARRIAGES ACT CHAPTER 5:17
The new Marriages Act (Chapter 5:17) came into operation on the 16th of September 2022 [2]. This law has brought a change to the marriage laws in Zimbabwe with the Marriage Act (Chapter 5:11) and Customary Marriages Act (Chapter 5:07) being repealed. The new Act introduces a civil partnership and a qualified civil marriage and recognises an unregistered customary law union as a marriage (subject to registration).[3] A marriage is defined in section 2 as- โmarriageโ means a marriage solemnised, registered or recognised as such in terms of this Act.
TYPES OF MARRIAGES
- Civil Marriage
A civil marriage is monogamous, it is the lawful union of two persons to the exclusion of all others and no person may contract any other marriage during the subsistence of a marriage under the general law.
- Registered Customary law union
Potentially polygamous marriage. A customary law marriage may, subject to the customary law of the people concerned, be polygamous or potentially polygamous.
- Unregistered Customary law union (UCLU)
A marriage contracted solely according to customary law and not solemnised in terms of the Act. The union must be registered by the parties to such marriage within three months of the date of the union.
- Qualified Civil marriage
Civil marriage which is polygamous or potentially polygamous. Solemnised by the Minister of religion for Islamic rites.
Civil Partnership [4]
(1) A relationship between a man and a woman whoโ
(a) are both over the age of eighteen years; and
(b) have lived together without legally being married to each other; and
(c) are not within the degrees of affinity or consanguinity as provided in section 7; and
(d) having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis;
shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship. This relationship is not recognised as a marriage, it is only recognised for the purposes of determining rights upon dissolution of the relationship.
Impact of Marriages Law on Pension Funds
For pension funds, the need to verify the existence of a marriage is most likely to arise when a member dies, and the surviving spouse claims pension benefits. The marital status of a member is therefore a very important factor to be taken into account in the administration of a pension fund. It is important to determine whether a member is married and has a spouse or dependents for the disbursement of benefits. A marriage is as defined in terms of the new Marriages Act Chapter 5:17. A memberโs pension may be payable to a spouse depending on whether such spouse qualifies as โeligible surviving spouseโ in terms of the fundโs rules. This definition includes all of the legally recognised types of marriages discussed above.
Unregistered Customary Law Union
Section 2 subsection 3 of SI 323 of 1991 makes provision for unregistered customary law unions and recognizes its status as a marriage and provides as below;
(3) Notwithstanding anything contained in the rules of any fund, an unregistered customary law marriage shall be recognised for the purposes of the rules as being no less valid than a marriage solemnised under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], and where proof is required of the existence of an unregistered customary law marriage the following shall sufficeยพ
(a) an affidavit of the wifeโs guardian in customary law attesting to the existence of such marriage; or
(b) an affidavit of a close relative of the wife and an affidavit of a close relative of the husband attesting to the existence of such marriage.
The above provision recognizing unregistered customary law unions as marriages falls away. The new marriages law codifies the unregistered customary law union and prescribes certain conduct for it to be recognized as a marriage. An unregistered customary law union is only considered a marriage if it is registered within 3 months of the union. Further section 46 of the new marriagesโ law has retrospective effect. It provides in subsection 3 that;
(3) The parties to any unregistered customary law marriage contracted before the
date of coming into operation of this Act shall secure the registration of such marriage in
terms of this Act within twelve months of the date of coming into operation of this Act.
Whereas the new pensions law came into effect on the 2nd of September 2022, the provisions of SI 323 of 1991 remain in effect for pension funds in respect of existing policies up to that date. The coming in of the Marriages Act Chapter 5:17 also brings retrospective effect to SI 323 of 1991 as regards unregistered customary law unions. The new marriages law having been brought ย into operation on the 16th of September 2022 requires all unregistered customary law unions to be registered by the 16th of September 2023.The question of disputes relating to whether one is a surviving spouse (evidence of the marriage through affidavits) or if there is more than 1 surviving spouse has been resolved by the new law. A surviving spouse in a customary marriage is one whose marriage was registered within 3 months of the union or one who registers their customary law union by the 16th of September 2023. Pension funds have lost the right to carry out full investigations and exercise a discretion on the determination of a surviving spouse under an unregistered customary law union as per SI 323 of 1991.
Distribution of Death Benefits:ย Is a party in a Civil Partnership a Spouse?
The distribution of lump sum benefits payable on the death of a member of a fund is regulated by section 28 of SI 323 of 1991. Section 28 of the regulations provided that death benefits do not form part of the deceased’s estate but had to be distributed in line with the provisions of the regulations. As previously set out in this article, there are no regulations presenting themselves for examination as regards the position of parties in a civil partnership. The civil partnership being a โliving-inโ arrangement which is factual is given legal status at the time of dissolution. The relationship is not recognised as a marriage and the word spouse cannot be interpreted to mean a partner in a union not recognised by the law.[5]
The pensions industry continues to be impacted by legislative and regulatory changes โ these not only include enhanced financial reporting requirements and actuarial guidelines, but an increased focus on governance, risk management and compliance requirements. Pension funds, board members of funds, fund administrators, principal officers and employers must take time to appreciate the impact of the new marriages law on pension funds. The marital status of a member is a very important factor to be taken into account in the administration of a pension funds. To properly administer benefits, pension funds, board members, principal officers and employers need to be clear on the rights and responsibilities of spouses and other dependents.
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[1] Statutory Instrument 164 of 2022
[2] Statutory Instrument 164 of 2022
[3] However, despite all these changes, the matrimonial property regime in Zimbabwe remains out of community of property[3].
[4] Section 41 of the Marriages Act Chapter 5:17
[5] See the case of Katiyo v Standard Chartered Zimbabwe Pension Fund 1995 (1) ZLR 225
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