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Arthur Marara

I want to start my article with a part that has seen many fights in the courts. The spirit of this article is to encourage people to find better ways of settling their disputes. 

My desire is to see less and less protracted matters before the courts. The level of backlogs at the courts is largely caused by how parties are handling their matters.  

Protracted divorces usually stem from property disputes in particular the sharing of the property. The question therefore is how is property shared during a divorce. 

I will tackle this in today’s instalment.  The area of property sharing is very long, and can be technical to the uninitiated. My focus therefore is to simplify the law on this aspect, and to give a bit of enlightenment on the area. 

The law referred to in this article applies to Zimbabwe which is a Roman-Dutch jurisdiction.  

Which law is used to govern property sharing on divorce? 

The general position of law is that under Roman-Dutch common law, proprietary consequences are governed by the law of the husband’s domicile at marriage unless there is an antenuptial contract.  

The word “Domicile” is derived from Latin legal maxim — “domicilium citandi et executandi” — which in English simply means, “where do we find you”, in other words your address. The question of domicile is key in terms of jurisdiction of the High Court. I will not pursue this further as it may confuse you with legalities.  

 Ante-nuptial v pre-nuptial contract 

This arose in the previous paragraph as playing a key role when it comes to property sharing.  

A prenuptial or premarital agreement, commonly abbreviated as prenup, is  a contract entered into prior to marriage, civil union, or any agreement prior to the main marriage agreement by the people intending to marry or contract with each other. 

The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property & spousal support in the event of divorce or breakup of marriage. 

An antenuptial agreement (also called postnup) is signed during a marriage. Most jurisdictions require that a postnup not be signed in contemplation of divorce, but rather a change in your financial situation. 

Out of community & in community of property marriages

This distinction is very important. It has implications on divorce when it comes to property sharing. Prior to 1929, all marriages under general law were automatically in community of property. 

Post 1929 position reversed through provisions of the Married Persons Property Act — all marriages are automatically OUT of community of property unless the parties enter into an ante nuptial contract creating community of property. This is the opposite of South Africa where the marriages are IN community of property.  

What happens in community of property marriages? 

Under this regime, property is jointly owned by the spouses — i.e. movable and immovable property, present and future including debts are held jointly.  Spouses hold equal & indivisible shares regardless of level of contribution or value of item contributed. 

Husband has marital power over the estate. Joint estate falls automatically under administration of husband who holds marital power & is the sole administrator of the joint matrimonial property. 

He deals with the property as he deems fit — he can donate, alienate, encumber property without being accountable to his wife. 

There is no protection to the wife during subsistence of marriage. Community comes to an end at dissolution of union by death or divorce where spouses get half share and heirs to the estate get the deceased’s share post death. 

So advantage is only at death or divorce. Husband can donate, sell or destroy estate and is not liable in damages to his wife for any maladministration. 

Marital power of the husband is highly prejudicial to women. However, the courts, have had occasion to intervene through the use of the matrimonial causes act that provides an equitable re-allocation of community assets at the time of divorce. (See : Chiromo vs Katsidzira 1981 ZLR 418) 

What happens in community 

of property marriages? 

In a marriage out of community of property, property rights are unaffected during marriage. Each spouse retains his or her own property what they brought in and what they have since bought.  

Total independence of each spouse — wife can enter into contracts, sell own property, enter into partnerships & go to court without husband’s assistance. Wife is not under the control of her husband. 

She can enter into contracts, sell her own property , enter into partnerships & go to court without husband’s help. An imprudent spouse is prevented from ruining his/her spouse because there is no community of debts. 

In real life once married, parties usually work together to build their asset base for their marriage. It becomes very difficult to distinguish who bought what.  Some wives stay at home and take care of the family, and contribute indirectly. I will talk about contribution later in this article.  

 Property division — 

What is shared  

The conversation here is mainly focusing on people who are married in terms of  — Marriage Act (Chapter 5:11). When we are talking of property, we are mainly concerned with the assets that you brought into the marriage; what you bought during marriage and what you bought while on separation.  

o To be continued . . .

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]