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Arthur Marara
This article is a continuation of what was published in this section last Friday on property sharing on divorce.

The property is divided into 3 lots i.e.

Hers,

His,  and

Theirs.

His -refers to the property which the husband brought to the union.

Hers -This refers to what the wife brought into the union.

There are some people who even have the tendency of claiming property that was already there even before they got married. There are also some people who are calculative who think they can just get into the marriage and come out with property. It is not that easy. *You need to prove your contribution to the acquisition of the assets – either direct or indirect*.

Theirs – What the parties have acquired together during the subsistence of the marriage. This is where the majority of the fights especially where the other spouse is trying to take everything away from the other spouse. The purpose of divorce is not punish the other party.

Direct and indirect contributions …

The issue of contribution is very important in the division of assets. In terms of s 7 (4) (e) of the MCA, when considering contributions both direct and indirect contributions must be taken into account. The Act speaks of direct and indirect contributions. The mere fact that a wife was not going to “work” does not mean that she will walk away empty handed. How can one quantify in monetary terms the contribution of a wife and mother who for several years faithfully performed her duties as wife, mother, counsellor, domestic worker, housekeeper, day and night, nurse for her husband and children?

How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy?

How can one measure in monetary terms the creation of a home, and the creation of an atmosphere therein from which both husband and children can function to the best of their ability?

In the light of these many and various duties, how can one say, as is often remarked: “throughout the marriage she was a housewife. She never worked”? It is precisely because no monetary value can be placed on the performance of these duties that the Act speaks of 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.” (See: Usayi v Usayi 2003 (1) ZLR684 (SC))

It is better for parties to divide the properties amongst themselves than to wait for the court to do this. You may not like the outcome.

Excluded property …

Section 7(3) of the MCA speaks about excluded property from property sharing, and this includes inherited property, of sentimental value (definition?); custom (tsvimbo, spear, knobkerrie, rural homestead, land) etc. *See* Sanders Moyo v Helen Moyo (where a car bought by a boyfriend was ruled to be a donation by the court)

I rest my case, and my conversations around the sensitive subject of divorce. The next articles will cover other aspects of the law.

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate and family law attorney. As an attorney, he has worked over the years on matrimonial matters including but not limited to divorces, maintenance, custody and guardianship issues. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263718867255 or email [email protected]