Zimpapers Logo

A woman ponders her next move after being evicted from her home

Fourie Revai
The issue of property rights in marriage has hogged the limelight for a long period.

In Zimbabwe all marriages are presumed to be out of community of property and this basically means that whatever property acquired during the subsistence of the marriage is not subject to joint ownership and belongs to that party upon whose name it is registered.

Parties to a marriage may however enter into what is known as an ante-nuptial contract where they can clearly spell out any terms and conditions in respect of the matrimonial property.

The challenges particularly manifest in respect of immovable properties which include houses and residential stands. More often than not, situations arise where residential properties acquired during marriage are registered in the name of one spouse; invariably the husband.

This applies even where both parties have equally contributed financially or otherwise to the acquisition of the property. At law, a person’s ownership of immovable property is evidenced by registration. An owner acquires what are known as real rights thus has power over the property which include disposing the property through means such as sale, pledge, mortgage and donation.

A lot of cases have been brought before the courts where one spouse would have disposed or mortgaged matrimonial property registered in that spouse’s name.

The judicial call has been for a change in law. Indeed the need is repeated here. The Constitution of Zimbabwe provides for equality and non-discrimination and this includes the equal treatment of women and men (Section 56).

In terms of Section 26 of the Constitution, the State has a responsibility to ensure that there is equality on the rights of spouses during marriage and at the time of dissolution.

This certainly extends to equality in the ownership of properties acquired during the subsistence of a marriage. The situation on the ground is however different. Our common law protects the right of ownership hence as long as there is no joint-registered ownership; a spouse in whose name the property is registered can legally dispose of the property.

Any contribution by the other spouse as far as purchase or development of the property is not recognised in so far as to prevent the disposal of the property in such circumstances.

The rights of the unregistered spouse are called personal rights which can only be enforced as against the registered spouse only and not the third party involved in the disposal.

In a recent decided case in the high Court of Zimbabwe (Madzara vs Stanbic Bank Zimbabwe limited and 4 others), a woman discovered that her husband had obtained a loan from a bank and provided their matrimonial house as security against payment of the loan (mortgage bond).

The husband subsequently failed to service the loan and was successfully sued by the bank and the house was due for sale to enable the bank to recover the outstanding debt. She then applied to the court to set aside the sale as she claimed she was the “real” owner of the property having immensely contributed to its acquisition.

The woman’s legal team proffered very solid arguments including but not limited to equal protection of the law, non-discrimination, marriage rights protection and some cultural hindrances inhibiting women from registering matrimonial properties in their names.

The bank’s position was that the law recognised the rights of the registered person and there is nothing at law that prevent women from registering immovable properties in their name or for spouses to have joint ownership.

It further argued that the woman had personal rights as against her husband hence she was free to claim any share from him. The court lamented the continued dichotomy between property rights and matrimonial property rights.

The court once again repeated the need for legislative reform which is long overdue. That there is need for urgent law reform cannot be overemphasised.

There is certainly a need for the protection of the matrimonial home or property as same plays a pivotal role in the family setup. The Constitution is very clear on equal treatment and protection of women and men; the legislature’s wheels must simply move.

In other countries like Canada, a matrimonial home cannot be disposed, pledged or mortgaged without the consent of the other spouse despite the registration status of same. Similarly we need amendments to our marriage laws to reflect such a position.

The courts have identified the gap which they rightfully state cannot be filled by the activism of judges alone but certainly cries for law reform.

As justly put by Justice Tsanga in the Madzara case, our law must clearly define and prevent the alienation of matrimonial property through sale, mortgage, pledge or debt. Conditions and exceptions to its disposal must also be provided which may include consent and court orders.

More importantly the law must also provide a clear protection where the matrimonial property is not jointly registered. By extension, the enactment of such a law will also put responsibility on lenders with regard to mortgaging matrimonial property.

A call is thus being made to the legislature to intervene in this important area which is at the core of our family law. This will certainly bring the much needed certainty and smiles on the faces of mainly women who often find themselves at the receiving end of the position of the law as it stands.

•  For feedback, questions and comments please feel free to email – [email protected] Look out for the next article in this column next week and the Kwayedza every Thursday. For a 24 hour response to Gender Based Violence issues, call our toll free number 08080131: hotlines 0776736873 / 0782900900