The Sunday Mail
Legal Matters with Arthur Marara
The last two articles that I did were relating to divorce; the introductory parts, and then an encouragement for all those who have not wound up their affairs. I want to go to 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 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.
The property is divided into 3 lots i.e.
- Hers,
- His and
- Theirs.
His — refers to the property which the husband brought to the union.
Hers = This refers to what the wife brought into the union.
There are some people who even have the tendency of claiming property that was already there even before they got married. There are also some people who are calculative who think they can just get into the marriage and come out with property.
It is not that easy. You need to prove your contribution to the acquisition of the assets — either direct or indirect.
Theirs = What the parties have acquired together during the subsistence of the marriage. This is where the majority of the fights especially where the other spouse is trying to take everything away from the other spouse.
The purpose of divorce is not punish the other party.
Direct; indirect contributions . . .
The issue of contribution is very important in the division of assets. In terms of s 7 (4)
(e) of the MCA, when considering contributions both direct and indirect contributions must be taken into account. The Act speaks of direct and indirect contributions. The mere fact that a wife was not going to “work” does not mean that she will walk away empty handed.
How can one quantify in monetary terms the contribution of a wife and mother who for several years faithfully performed her duties as wife, mother, counsellor, domestic worker, housekeeper, day and night, nurse for her husband and children?
How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy?
How can one measure in monetary terms the creation of a home, and the creation of an atmosphere therein from which both husband and children can function to the best of their ability?
In the light of these many and various duties, how can one say, as is often remarked: “throughout the marriage she was a housewife. She never worked”?
It is precisely because no monetary value can be placed on the performance of these duties that the Act speaks of 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.” (See: Usayi v Usayi 2003 (1) ZLR684 (SC))
It is better for parties to divide the properties amongst themselves than to wait for the court to do this. You may not like the outcome.
Excluded property
Section 7(3) of the MCA speaks about excluded property from property sharing, and this includes inherited property, of sentimental value (definition?); custom (tsvimbo, spear, knobkerrie, rural homestead, land) etc. *See*
Sanders Moyo v Helen Moyo (where a car bought by a boyfriend was ruled to be a donation by the court) I rest my case, and my conversations around the sensitive subject of divorce. The next articles will cover other aspects of the law.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.
They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post.
Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
(Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara @gmail.com
