Zimbabwean matrimonial property law is governed by the Matrimonial Causes Act (Chapter 5:13) and the Married Persons Property Act (CHAPTER 5:12). In terms of the latter, marriages are generally out of community of property. This means that during the subsistence of the marriage, each spouse retains sole ownership of the property registered in their name. Spouse can therefore dispose of their assets as they deem fit without having to consult the other.
The Married Persons Property Act (CHAPTER 5:12)
According to the Married Persons Property Act (Chapter 5:12):
Marriages concluded after 1st January 1929 are out of community of property save for those concluded by parties who enter into an agreement to the contrary prior to the solemnization of the marriage.
Marriages concluded prior to the 1st January 1929 are in community of property unless if the spouses entered into an agreement that the Married Persons Property Act (Chapter 5:12) shall apply.
Every notarial deed executed in respect of marriages solemnized prior to the 1st January 1929 shall specify in detail the allocation to each spouse executing such instrument of his or her half share of the property held in community at the date of execution thereof, or such other division thereof as they may have agreed upon.
The validity of the Notarial Deeds in respect of marriages concluded before or after the 1st January 1929 is dependent on the signatories meeting the requirements set out in the Act.
The Matrimonial Causes Act (Chapter 5:13)
How are the assets of the spouses shared upon divorce?
The division of assets of spouses upon divorce is governed by section 7 of the Matrimonial Causes Act (Chapter 5:13). The said Act only applies to marriages registered in terms of the Marriage Act (Chapter 5:11) and the Customary Marriages Act (Chapter 7:05).
There is no definition of “assets of the spouses”, an expression used in section 7 (1) (b) of the Matrimonial Causes Act (Chapter 5:13). The Honourable Mr Justice Chitakunye defined the term extensively in the Chikuni v Mavhiyo[1] case as follows:
“The term ‘assets of the spouses’ has been construed to include all such property or assets belonging to a spouse at the time of the dissolution of the marriage. Such assets may belong to spouses in their individual capacity or jointly owned. The assets may have been acquired before or during the marriage. What is of importance is that the asset must belong to one or both spouses at the dissolution of the marriage.”
All the property which belonged to either or both spouses, before and during the subsistence of the marriage, which belongs to either of or is jointly owned by the spouses at the time of the dissolution of the marriage.
Even if a spouse owned the property prior to the solemnization of the marriage, as long as it is not excluded in terms of the provisions of section 7 (3) of the Matrimonial Causes Act (Chapter 5:13) such property is deemed matrimonial property and can be made subject of the court order upon the dissolution of the marriage.
Property excluded from distribution
Is there property which cannot be shared upon divorce?
Yes there is.
In order for property to be excluded from consideration as matrimonial property, it musthave been acquired by a spouse, whether before or during the marriage[2]—
by way of an inheritance; or
in terms of any custom and which, in accordance with such custom, are intended to be held by the spouse personally; or
in any manner and which have particular sentimental value to the spouse concerned.
Exclusion from consideration of an asset as matrimonial property is not automatic. The onus is upon the spouse raising exclusion as a defence, to show that the asset falls within that category of assets to be excluded in terms of section 7 (3) of the Matrimonial Causes Act (Chapter 5:13). Without such exclusion all assets must be placed on the table for consideration.
Factors considered when distributing assets
What factors does the Court consider when distributing the assets of the spouses upon divorce? When considering the distribution of the assets, the court is enjoined to consider all the circumstances of the case, including[3]
the income-earning capacity, assets and other financial resources which each spouse andchild has or is likely to have in the foreseeable future;
the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;
the age and physical and mental condition of each spouse and child;
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;
the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;
the duration of the marriage;With a view to ensure that the distribution places the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.
It is during that process that the spouses’ preferences including manner of acquisition will be taken into account. The manner of acquisition or by whom an asset was acquired would not necessarily result in that asset being awarded to that spouse. Section 7 empowers the court to transfer a spouse’s asset to the other in an endeavour to attain the objective of the section.
In summary, in terms of Zimbabwean law
While the parties are still married, before filing for divorce, the spouse who is registered as the owner of the property can deal with the property as they wish without having to consult the other spouse.
Matrimonial assets are assets acquired before and during the subsistence of the marriage.
At the time of the dissolution of the marriage, ALL of the assets belonging to the spouses individually or jointly are fair game and can be awarded to either party upon consideration of the factors listed in section 7 (4) of the Matrimonial Causes Act (Chapter 5:13) by the courts.
Only assets falling under the categories listed in section 7 (3) of the Matrimonial Causes Act (Chapter 5:13) can be excluded from consideration as matrimonial assets once a spouse proves that it falls under the category.
At the time of the dissolution the marriage, there is need for one to know all of the assets owned by the other spouse or jointly as well as prove the direct and or indirect contributions they made towards the acquisition of same in order to be awarded an asset or part thereof by a court of law.
Kanokanga & Partners
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