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Rumbidzai Tawonezvi-Moyo

In Zimbabwe we have three types of marriage. Civil Marriage in terms of the Marriage Act chapter 5:11 (formerly known as chapter 37); Registered Customary Law Union in terms of the Customary Marriages Act chapter 5:07 (formerly known as chapter 238); and the Unregistered Customary Law Union (UCLU).

All of these marriages are under the matrimonial property regime of “Out of Community of Property and Out of Profit and Loss”.Basically this means “what’s yours is yours and what’s mine is mine”.

This article will examine the rights of a party involved in a civil marriage in terms of the Marriage Act chapter 5:11.Any property purchased during the subsistence of the marriage and registered in your name is wholly owned by yourself and any property purchased during the subsistence of the marriage and registered in your spouse’s name is wholly owned by your spouse.

For example, Chipo and John enter into a civil marriage on the 10th of October 2010. During September of 2011, John obtains a loan from CABS and purchases a four-bedroomed house in Dzivarasekwa which is registered in his own name.

This property is therefore wholly owned by John. Chipo does not own a share of the property. Chipo would only own a share of the property if she was also registered as a part owner of the property.

As the owner of property one is free to do as they please with the property. They are free to lease the property out and obtain the rentals for themselves. They are free to dispose of the property freely without the consent or permission of their spouse. They are free to bequeath the property to whomever they wish in their will. They do not need to consult with their spouse as to their intentions with property registered in their name.

Exceptions to the general rule

There are two exceptions where a spouse can claim property which is registered in their spouse’s name as their own property:

1) Upon death and;

2) Upon divorce

Death

Upon the death of a spouse, the surviving spouse is the sole heir of the matrimonial home of the parties that they were living in immediately before the deceased’s death, as well as all household goods and effects. So for example, Chipo and John’s matrimonial home was in Belvedere.

This home was registered in John’s name alone and was therefore considered as property wholly owned by John. John passed away in January 2016 in a fatal car accident. Chipo, as the surviving spouse of John, is the heir of the matrimonial home and household goods and effects.

Divorce

Upon divorce, although property may be registered in the name of one spouse, the other spouse may claim a share of the property according to their contribution to the property. For example, John and Chipo purchased a residential stand in Belvedere in 2013 with the intention of building a four bedroomed house on the stand.

The residential stand however was registered in John’s name as his sole property. Six months later however, John is retrenched from employment and Chipo is now the sole bread winner. She then gradually builds the four bedroomed house on the stand with her monthly income.

In February 2016 however due to irreconcilable differences, Chipo files for divorce. She may therefore claim a share in the property according to the contribution she made to it.

There are two forms of contribution that the Court considers when awarding matrimonial property; direct contribution and in-direct contribution. Direct contribution is actual financial contribution made. Indirect contribution is non-financial contribution.

An example of indirect contribution is child rearing, cooking, cleaning and caring for the home. The Court considers both direct and indirect contribution in a civil marriage.

In terms of the Marriage Act chapter 5:11, other factors that the Court may consider when awarding matrimonial property are as follows:

The income earning capacity, assets and other financial resources which each spouse has or is likely to have in the foreseeable future;

The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future;

The standard of living of the family;

The age and physical and mental condition of each spouse;

The value to either of the spouses including a pension or gratuity which such spouse will lose as a result of the dissolution of the marriage;

The duration of the marriage.

In terms of the Marriage Act chapter 5:11, all of these considerations are made by the Court in order to attempt to place the parties in the position they would have been in had a normal marriage relationship continued between the parties.

Zimbabwe Women Lawyers Association (ZWLA) advises that all matrimonial property be registered in the names of both parties to the marriage. This will ensure the equal and just distribution of property between spouses.

Parties may ensure that they are both owners of the property upon purchase of the property. Both husband and wife should ensure that they are both written down as “Purchasers” on the agreement of sale. This is because the agreement of sale is the document that reflects that property has been purchased. It is also the document which will be relied on upon when registering property in the owner’s name.