Temporary protection of rights to matrimonial property in spouse’s name

10 May, 2017 - 00:05 0 Views
Temporary protection of rights to matrimonial property in spouse’s name

The Herald

Rumbidzai Tawonezvi-Moyo
Zimbabwe Women Lawyers Association (ZWLA) has discussed in depth in previous articles published in The Herald how the matrimonial property regime in Zimbabwe is out of community of property and out of profit and loss.

This means that property that is registered in one spouse’s name belongs solely to that spouse. As such the person in whose name the property is registered has the right to dispose of the matrimonial property as they wish. This right however does not mean that the rights of the spouse can be ignored.

This article shall examine how the Domestic Violence Act Chapter 5:16 (DVA) can be applied for the protection of rights to matrimonial property registered in one’s spouse’s name.

Before we proceed with this article however, it is important to stress that the measures we will discuss are merely temporary in order to protect one’s right to matrimonial property for a certain period of time. They do not transfer ownership, and neither do they protect the property for an indefinite period of time.

The DVA was enacted in order to protect survivors of domestic violence from abuse suffered at the hands of perpetrators. The relief is sought through a Protection Order Application made in terms of the DVA.

The Application may be made at your nearest Magistrates Court. The DVA is a law that is generally underutilised in our society. ZWLA has observed that many women are reluctant to apply it.

Internal court monitoring studies done by ZWLA show that women are reluctant to apply for a protection order for various reasons such as fear of judgment and reproach from family members, intimidation by the perpetrator of domestic violence and a general stigma that is attached to involving the court in one’s private life.

Nonetheless we as ZWLA encourage all survivors of domestic violence to apply the DVA in order to protect their rights to matrimonial property in the following circumstances:

Protection from malicious damage to property in terms of section 3(h) of the DVA;

There have been many instances observed by ZWLA whereby a client may come with a complaint that their spouse has damaged matrimonial property for one reason or the other. An example of malicious damage to property is as follows:

Chipo and Maxwell are married and living together in Warren Park. Every time during a fit of rage, Maxwell smashes crockery and kitchen appliances, or uses his golf clubs to break windows and doors. In this instance, Chipo may apply for a protection order to prevent Maxwell from damaging property, (regardless of who purchased the property) during a fit of rage.

Protection from an act depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence in terms of section 3(j) the Act;

This law may be applied where one party may be preventing the other from having access to the matrimonial home, or a share of the matrimonial home.

ZWLA comes across such instances whereby one’s spouse may be trying to forcibly remove the other party to the marriage from the matrimonial property. An example of this may be as follows:

Sipho and Jabu have suffered irreconcilable differences within their marriage and have decided that they can no longer continue with a normal marriage relationship.

Jabu calls witnesses to their matrimonial home and offers Sipho a token of divorce (gupuro). He gives Sipho seven working days in which to vacate their matrimonial home. He does so on the strength that the matrimonial home is registered solely in his name.

Chipo approaches the Magistrates Court and obtains a protection order in terms of the Domestic Violence Act 5:16 in order to prevent Jabu from forcibly removing her from the matrimonial property.

This is not to say that Sipho may live in the matrimonial home indefinitely, however it does mean that Jabu may not forcibly remove her from the matrimonial property without a determination of equitable distribution of property being made by a court.

Jabu may not forcibly remove Sipho from the matrimonial property purely because the home is registered in his name.

Protection from the unreasonable disposal of household effects or other property in which the complainant has an interest in terms of section 3(k) of the Act.

It is important to note here that the Act says “unreasonable disposal” which means that it is up to the courts to determine what an unreasonable disposal of property is. This therefore means a property owner can dispose of their property as they wish as long as it is not unreasonable disposal of property. ZWLA may suggest the following example:

Jabu intends marrying another woman once his marriage with Sipho is dissolved. He needs capital to begin a new life with his new bride so he decides to sell his matrimonial home that he shares with Sipho in order to buy a new house for his new bride.

Sipho catches wind of Jabu’s plans and applies for a protection order in order to prevent Jabu from selling the matrimonial property. A court may find that this is an unreasonable disposal of property due to the fact that it is the matrimonial property of the two parties, and an equitable distribution of property needs to be determined before the property may be disposed of.

Important points to note on the application of the Domestic Violence Act 5:16

The protection order may be applied for where the parties are married in terms of the Marriage Act 5:11, the Customary Marriages Act 5:07, Unregistered customary law unions and even if parties are co-habiting. The key here is that they have a relationship in terms of the Domestic Violence Act.

· The measures invoked by the Domestic Violence Act are temporary measures. They are not meant to operate indefinitely.

ZWLA therefore would like to stress that the fact that the matrimonial property is not registered in one spouse’s name does not render that spouse inactive.

If you require protection from the malicious damage to property by your spouse, deprivation of access to matrimonial property or the unreasonable disposal of matrimonial property; there are circumstances where a party may act to protect their interests and ZWLA would like to encourage such parties to do so.

Please follow next week’s article where we provide more information on temporary relief that may be sought in order to protect one’s rights to matrimonial property registered in one’s spouse’s name.

For feedback questions and comments please feel free to email [email protected] or to phone our hotline number on 0782 900 900 or our toll free on 08080131

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