Authored By: Nozipho Ndebele
Great Zimbabwe University
Introduction
The default matrimonial property regime in Zimbabwe is an out of community of property unless parties conclude an ante nuptial contract prior to the solemnization of their marriage.[1] Generally speaking, an out of community of property regime entails that spouses have separate estates, they can acquire and dispose of their personal property without the knowledge and consent of the other spouse. Significantly, upon dissolution, an out of community of property requires each person to be granted that which was acquired and registered in their sole name.
However, upon dissolution of a marriage in Zimbabwe, the Matrimonial Causes Act applies. It affords a court the power and authority to order “the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other.”[2] In Chamba v Ngwarati HH31-15, it was pointed out that the term “assets of the spouses’’ includes either an assets in one spouse’s name or jointly owned. It is trite that in property law, ownership of immovable property is proved through registration and such registration affords one the most complete and comprehensive control over that land.[3] It boggles one’s mind if the application of the Matrimonial Causes Act upon dissolution of a marriage is a correct application of the an “out of community of property’’ regime. This research unveils that an out of community of property regime provided as the default position in Zimbabwe is not strictly enforced at dissolution as the courts have a wide discretion to order division of assets owned by spouses either individually or jointly.
An out of community of property regime
The out of community of property system is upheld during the course of the marriage, because the spouse whose sole name is registered on the immovable property has real rights to dispose of it without the knowledge and consent of the other spouse, even if its matrimonial property. The principles of property law apply in that the spouse whose name is on the title deed has the most complete and comprehensive control over the property, even the right to sell such property is untrammelled in spite of the other spouse’s direct or indirect contribution to its acquisition.[4] The position was succinctly encapsulated in Muswere v Makanza HH 16-2005 as follows;
“The position in our law is therefore that a wife cannot even stop her husband from selling the matrimonial home or any other immovable property registered in his sole name but forming the joint matrimonial estate.”
Although this is the strict application of an out of community of property, this position has its own seeds of injustice. It is prevalent in marital unions for parties to jointly acquire property and have it registered in one spouse’s name, particularly the husband as the head of the family.[5] This contribution is not automatically recognised during the course of the marriage as principles of property law apply, but upon termination of the marriage, such contributions are considered in the distribution of property regardless of whose name reflects on the title deed, because upon dissolution through divorce or death, principles of family law and law of inheritance are applicable.[6]
Property sharing at dissolution of a marriage
Section 7(1)(a) of the MCA grants a divorce court authority to order division or distribution of the assets of spouses or the transfer of property from one spouse to the other. In Reginald vs Reginald HH 38-26, the court affirmed the legal position upheld in Kassim v Kassim 1989 (3) ZLR 234 (HC) that the court as per section 7 of the MCA has authority on dissolution of a marriage to order the distribution of matrimonial property notwithstanding the strict legal title of the parties, upholding that it is irrelevant in whose name the property is registered since what is considered in terms of that section are the assets of the spouses as opposed to matrimonial property. This position was also fortified in Khoza v Khoza HB 169/24, where it was held that the argument by defendant against plaintiff’s claim on property registered on defendant’s sole name that their marriage is out of community of property was said to be untenable. Thus, when courts consider assets owned by the parties individually or jointly regarding distribution of the property, “the court is not concerned merely with who paid for what, nor with whose name appears on the title deed.”[7]
Section 7(3) of the MCA limits this wide discretion given to courts by stating that such power to order division of the assets of spouses shall not extend to property acquired before or during the marriage through inheritance, property that is of sentimental value to one spouse and property that is considered to be one spouse’s sole property as per custom. In Kapuya v Kapuya HH 07-26, it was held that if parties jointly effected improvements on the inherited property, the other spouse is entitled to a share of the value of improvements, though the inherited property itself will be excluded from distribution. In Reginald v Reginald HH 38-26, property whose purchase price constituted of monies inherited was considered to be of sentimental value to such a spouse. Properties considered to belong to one of the spouses as per custom include “inkomo yohlanga/mombe yeumayi.” Thus, this is the only property that despite being married out of community of property will be excluded from distribution.
Section 7(4) of the MCA provides several factors that are not an exhaustive list but can guide the court in the exercise of its power to order division or distribution of the assets of spouses upon dissolution. These factors include;
- the income-earning capacity, assets and other financial resources of spouses;
- the financial needs, obligations and responsibilities of spouses;
- standard of living of the family;
- the age and physical and mental condition of each spouse;
- the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
- the duration of the marriage
In Shenje v Shenje, it was pointed out that the above mentioned factors deserve a fresh comment, as through the reading of judgments one can err in concluding that direct/indirect contributions are the crucial consideration, since this factor is named fifth of seven factors and considering that the first four address the needs as opposed to the dues of the parties, it is time to recognize that the legislative intent and the objective of the courts is more weighted in favour of ensuring that the parties’ needs are met rather than that their contributions recouped.[8] Considering these factors, the courts have in many cases where immovable property is registered in the sole name of the husband awarded the wife a valuable share in the property, condidering mostly their needs and indirect contributions of domestic work. In Mhora v Mhora,[9] a 50/50 % share was granted, in Chamba v Ngwarati,[10] there was a 25% and 75% share, in Musonza v Musonza,[11] it was a 45% and 55% share, in Chivunga v Chivunga[12] a 30% and 70% share was ordered, in Mutizhe v Mutizhe,[13] a share of 35% and 65% was rendered. In all these cases, the duration of the marriage, needs of parties and domestic work was considered to afford women a share in the immovable property registered solely in their husband’s sole name.
The impact of these provisions
The MCA and its import is intended to strike a balance between the spouses, such that one spouse is not enriched at the expense of the other spouse.[14] Muchawa (2005) affirms that the separation of property brews a recipe of injustice, as spouses will often struggle to state their contribution at dissolution of a marriage because they seldom foresee divorce and they may not keep all documentation and records, be it receipts and bank statements of their contributions.
The courts being granted a wide discretion to make an order which they consider to be fair having considered direct and indirect contributions, women are unable to predict the outcome of their cases due to wide discretionary powers granted to courts in apportioning shares in the matrimonial home.[15]
Significantly, there is lack of certainty and uniformity in the enforcement of laws governing the division of matrimonial property as “courts are free to make almost any order they see fit”.[16] This uncertainty makes it difficult for parties to manage their affairs. The suggested approach is to make an in community of property regime the default position.
Conclusion
To sum up, the default matrimonial property regime in Zimbabwe is an out of community of property. However, upon dissolution of a marriage, the court is granted a wide discretion to make a value judgment in light of the factors provided in the MCA and it can order division of assets of spouses owned either individually or jointly. The courts uphold that the contributions of parties on the property should not be the determining factor, instead their needs ought to be prioritised to ensure that parties are placed in the position they would have been in had the marriage subsisted. This unveils a gap between the law on paper and the law in practice, creating uncertainty and unpredictability in cases on distribution of property upon dissolution of a marriage.
REFERENCE(S):
Legislation
Matrimonial Causes Act [Chapter 5:13].
Married Persons Property Act [Chapter 5:12].
Case law
Chamba v Ngwarati HH31-15.
Chivunga v Chivunga HH 582-24.
Kapuya v Kapuya HH 07-26.
Khoza v Khoza HB 169/24.
Mhora v Mhora SC 617/18.
Musonza v Musonza HH 35-2010.
Muswere v Makanza HH 16-2005.
Mutizhe v Mutizhe HH 483-18.
Reginald v Reginald HH 38-26
Shenje v Shenje 2001 (2) ZLR 180 (H).
Dissertations
Muchawa. “A roof over my head’: The rights of a civil marriage wife under family law to the matrimonial home registered in the sole name of her husband.” Masters Degree, University of Zimbabwe (2005).
Shingai Mabaso. “The equitable division of the matrimonial home violates women’s rights in their matrimonial homes upon divorce”: a critical analysis of the current legal approach in the division of the matrimonial home registered in the husband’s name upon divorce and how it violates women’s rights.” Masters Degree, University of Zimbabwe (2018).
[1] Married Persons Property Act [Chapter 5:12]: sec 2.
[2] Sec 7(1)(a).
[3] Muswere v Makanza HH 16-2005.
[4] Muswere v Makanza HH 16-2005.
[5] Muswere v Makanza HH 16-2005.
[6] Muswere v Makanza HH 16-2005.
[7] Reginald v Reginald HH 38-26.
[8] Shenje v Shenje 2001 (2) ZLR 180 (H).
[9] Mhora v Mhora SC 617/18.
[10] Chamba v Ngwarati HH31-15.
[11] Musonza v Musonza HH 35-2010.
[12] Chivunga v Chivunga HH 582-24.
[13] Mutizhe v Mutizhe HH 483-18.
[14] Khoza v Khoza HB 169/24.
[15] Shingai Mabaso. “The equitable division of the matrimonial home violates women’s rights in their matrimonial homes upon divorce”: a critical analysis of the current legal approach in the division of the matrimonial home registered in the husband’s name upon divorce and how it violates women’s rights.” Masters Degree, University of Zimbabwe (2018).
[16] Shingai Mabaso. “The equitable division of the matrimonial home violates women’s rights in their matrimonial homes upon divorce”: a critical analysis of the current legal approach in the division of the matrimonial home registered in the husband’s name upon divorce and how it violates women’s rights.” Masters Degree, University of Zimbabwe (2018).
