The Sunday Mail
Today I would like to look at the law in so far as it applies to the marriage under both customary and general law in the event of divorce or death of one of the spouses and how the parties relate to their matrimonial property whether movable or immovable.
I am particularly concerned with the last mentioned. I also seek to shed a bit more light on the relationship between the spouses and that “family business”.
In my humble view, the most logical point from where to begin is to state that all marriages in Zimbabwe are out of community of property unless there is an ante nuptial contract. But then what does the phrase “out of community of property” mean and what is an “ante nuptial contract?”
When a marriage is said to be out of community of property it means that whatever property is brought into the marriage by a particular spouse remains hers or his, particularly under general law.
Under customary law, the woman has never been expected to bring anything into the marriage.
However, whatever the parties acquire during the subsistence of the marriage is communally owned, that is to say, it belongs to them together.
Upon the death of one of the spouses, all that property will fall into the estate of the surviving spouse unless the deceased left a Will which must, however, conform to the law.
On the other hand, an ante nuptial contract a prenuptial agreement is a written contract between two persons who are about to marry,setting out the terms of possession of assets, treatment of future earnings, control of the property of each,and potential division if the marriage is later dissolved.
Such agreements are uncommon in our country particularly among the blacks as they are viewed as unAfrican.
What is not so well understood by many is this. What happens upon divorce where the parties are married under general law, particularly in terms of the Marriage Act (Chapter 5:11) formerly famously known as (Chapter 37)?
In our country, most women folk take great comfort from the marriage certificate (“ngilo mtshado mina/ndine muchato kaini”) thinking that on divorce, the property will be shared somehow between them or that she will at least get something. This is unfortunately erroneous. The correct position is that the parties will get away with only that property which they acquired before the marriage was consummated and by logical reasoning, sharing that which they jointly acquired whether before or after the marriage.
The key words are joint acquisition. If for instance, Mr X the husband, owned an immovable property (a house) prior to the marriage and after marriage in terms of the Act, the parties divorce, that house, commonly called “the matrimonial home”, will not be subject to distribution between the erstwhile spouses for it has always been his and Mrs X, the wife, will have no claim on it. On the other hand, if the house was acquired by the parties during the subsistence of the marriage, then and rightly so, the court will enquire into the respective contributions of the spouses and distribute it accordingly.
Note that even where a wife was officially unemployed but contributed by other means such as cooking for the builders and looking after the family thereby freeing him to pursue his vocation in order to raise the finances to build the property, that will be taken as a valid contribution and she will get something.
So women, be warned, the marriage certificate only protects you upon his death and even if he leaves behind a Will allocating the immovable property to someone else, that will is liable to be set aside by the court.
I shall discuss the issues surrounding the will on another day.
But, what if the matrimonial property is registered in the joint names of the spouses?
Here I have to admit that this is debatable for there are judgements where the courts have gone beyond the joint title deed and enquired on the respective contributions of the spouses towards the acquisition of the property.
Vito v Vito (HH73 of 2008) is a case in point.
With respect, that approach does not sit very well with me. I believe that once the joint title of the spouses is noted on the title deed that should be the end of the matter.
The divorce court should be enjoined and obliged to apportion the property according to the parties’ shares as reflected on the title deed.
I am emboldened in this view by the long-held principle of law that the effect of registration of immovable property in the Deeds Office is to guarantee title unless fraud is alleged and proved.
I also wish to bring to the fore, the fact that a couple that is married under general law can only have one “matrimonial home”.
So if our Mr X is a man of wide means and acquires several other movable and immovable properties that are registered in his name, the divorce court will not delve into that upon dissolution of the marriage as that will not be matrimonial property in the eyes of the law.
Any claim against such property would have to be pursued in another court on another day as that has nothing to do with the marriage.
So the only way women can protect themselves in such instances if they have contributed to the acquisition of those other properties is to ensure that their interest is also noted on the title deed at the time of acquisition.
But as we have said above herein, even on divorce that will not be considered but will certainly come into play upon his death unless it is shown that those other properties are in fact matrimonial assets.
Movable property
From my own experience, issues relating to the distribution of movable assets, that is to say, motor vehicles, household furniture and the like upon divorce have not really caused much, if any, consternation and or anxiety in our courts for parties very often quickly come to agreement.
It is that house, the matrimonial home, which has been a bone of contention for a very long time now.
I, therefore, decline any invitation to further debate the aspect relating to the distribution of movable assets upon the dissolution of the marriage.
However, for the sake of clarity and completeness, upon the death of one of the spouses, the movables will fall into the estate of the surviving spouse or in terms of the will.
Marriage and the ‘family’ business
Sometimes our Mr X runs a very successful company (frequently loosely called “the family business”) normally under a registered company which may end up acquiring several immovable assets.
It goes without saying that such properties will remain in the estate of the company even if Mr X divorces his wife or dies.
It is trite that a company is a separate legal persona meaning, therefore, that its assets and or liabilities belong to no one but itself.
Assuming that Mr X is the sole shareholder in that company, it follows that upon his divorce or demise, Mrs X, will have no access whatsoever to the assets of that company unless she is a shareholder in the company.
She may, however, access his shares in the company when his estate is wound up.
Otherwise, anything to do with that company will have no place in the divorce proceedings or the administration and distribution of Mr X’s estate if he dies whilst still married to Mrs X.
In this scenario, Mrs X can only protect herself by ensuring that she appears in the register of the shareholders of the company if she is to have a say upon divorce or the death of Mr X.
In other words, the death of Mr X will not have any bearing on the running of the company since a company by its very nature, has perpetual succession unless and until it is terminated according to law.
Matrimonial property in customary law
It has been said that ownership of immovable property was unknown under customary law. In fact an unregistered customary law marriage is not valid as far as the general law is concerned.
It is only valid for purposes of custody, access and maintenance of the minor children of the marriage.
This is so because persons married according to custom were not expected to acquire immovable property in terms of the general law.
This explains why in the ‘60s and ‘70s, one had to have a marriage certificate (paidiwa muchato) in order be allocated a house in the city.
But then with the passage of time, persons married according to customary law nevertheless soon found themselves acquiring immovable properties in the cities.
Complications arose upon divorce as their marriage was not recognised under general law as alluded to earlier.
In the event of the death of one of the spouses the property would be distributed according to the Administration of Estates Act (Chapter 6:01).
This involves the appointment of an Executor with the power to oversee the harnessing of all the deceased person’s property whether movable or immovable and to cause the deceased’s family members to meet and appoint an heir.
Challenges have arisen on the dissolution of the said unregistered customary law marriage particularly where the parties’ matrimonial home is registered in the name of one of the spouses.
If it is registered in the name of the husband, the court will nonetheless enquire into the respective contributions of the parties. In the past, all the property where the parties’ marriage was unregistered, belonged to the man.
The woman was only entitled to her “mawoko” property, that is to say, property acquired through her own labour or accepted customary norms as for example, hari dzake or mombe dzehumai.
This was oppressive.
Our courts deserve loud applauses for being innovative enough as they have developed what they call Tacit Universal Partnerships in terms of which, despite the beliefs and customs, an enquiry is undertaken to establish the roles of the spouses in the acquisition of that property in an effort to do justice between them and avoid unjustly enriching the one whilst contemporaneously impoverishing the other.
If the court is satisfied that the woman though married according to custom, contributed in the acquisition of the parties’ property, whether movable or immovable, it will apportion the property according to the parties’ respective contributions.
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