1. INTRODUCTION

Civil Marriages are those that are concluded in terms of the Marriage Act [Chapter 5:11]. They are usually classified as either being in community of property or out of community of property. When a civil marriage is:

(a) in community of property it means that all of the spouses’ assets and liabilities (even those acquired before the marriage) are merged into a joint estate, in which each spouse has an undivided half-share.

(b) out of community of property it means that each spouse retains full control and contractual capacity of their estate which includes all assets and liabilities acquired both before and during the marriage. The property acquired by each spouse during the marriage is what they will take with them upon divorce.

In countries like South Africa marriages are in community of property unless the spouses sign an anti- nuptial contract specifically excluding community of property. In Zimbabwe, on the other hand, marriages are out of community of property unless the spouses sign an anti- nuptial contract merging their estates. However, this does not seem to be the true case as will be shown below.

2. LEGISLATION GOVERNING PROPRIETARY CONSEQUENCES OF CIVIL MARRIAGES IN ZIMBABWE

The proprietary consequences of civil marriages in Zimbabwe are primarily governed by the Married Persons Property Act [Chapter 5:12] and the Matrimonial Causes Act [Chapter 5:13]. The Married Persons Property Act in section 2 states as follows;

“2 Community of property excluded from marriages after 1st January, 1929, except where agreements made to the contrary.

(1) Community of property and of profit and loss and the marital power or any liabilities or privileges resulting therefrom shall not attach to any marriage solemnized between spouses whose matrimonial domicile is in Zimbabwe entered into after the 1st January, 1929, unless such spouses shall, by an instrument in writing, signed by each of them prior to the solemnization of their marriage and in the presence of two persons, one of whom shall be a magistrate, who shall subscribe thereto as witnesses, have expressed their wish to be exempt from this Act.”

From the above quoted extract of the Married Persons Property Act, it follows that the position in Zimbabwe is that civil marriages entered into after the 1st of January 1929 are out of community of property. This means that ideally each spouse should be responsible for the profit and loss attaching to their estate and these should never spill over to the other spouse’s estate. In other words if a spouse incurs a debt, that debt should not be passed on to the other spouse’s estate and equally if one spouse acquires an asset, the value of that asset should not affect or be counted in the other spouse’s estate as the two spouses’ estates, outside of the ordinary shared joint household expenses, are regarded as completely separate.

However, as many who have gone through divorce have probably discovered, this is not the case. Section 7 of the Matrimonial Causes Act brings in what is commonly referred to in the legal circles as the “contribution principle”. Section 7 of the Matrimonial Causes Act allows the court, during divorce proceedings to consider various factors in order to come to an equitable and just distribution of the parties’ matrimonial property. The most common of these factors being the direct or indirect contribution of a spouse to the estate of the parties divorcing. An example would be a housewife who saves the husband the costs of a maid. Her contribution to the spouses’ matrimonial property is in terms of section 7 of the Matrimonial Causes Act, considered and must be rewarded.

The “contribution principle” seems to be in direct contradiction with the concept of exclusion of community of property upon marriage as expressed in the Married Persons Property Act. I should hasten to add that the court has the power even after conclusion of the divorce proceedings to redistribute property that could have been for some reason been omitted or concealed by the one party during divorce proceedings.

The Constitution of Zimbabwe Amendment (No. 20) Act 2013 in section 26(c) also weighs in on the subject. This particular section states that;

“26 The State must take appropriate measures to ensure that;

(c) there is equality of rights and obligations of spouses during marriage and at its dissolution.”

This section of the Constitution seems to be reinforcing the principle in section 7 of the Matrimonial Causes Act referred to above. Therefore the question arises as to whether civil marriages in Zimbabwe are truly out of community of property or it is just a sham?

A further worrying interpretation of section 7 of the Matrimonial Causes Act has over the years emerged from our judiciary almost leading, if one may say, to the erosion of the “out of community of property” principle. A few of the judgments are considered below.

3. JUDICIAL PRECEDENTS

• In the case of Simba v Simba HH 410/20, the court awarded 100% of the matrimonial home to the wife although both parties had contributed to the purchase of the house and were married out of community of property. This was after the husband had deserted the family sometime between the year, 1999 and 2000 after 17 years of marriage, sold and utilized proceeds from another immovable property stand that the parties had purchased together. All this was done without the wife’s knowledge. He had also left the wife to raise their two children alone and had also infected her with an incurable sexually transmitted disease. The court thus, using the factors listed in section 7 of the Matrimonial Causes Act, ordered that the husband should transfer his 50% share in the immovable property so as to achieve justice and equity in the circumstances of the case.

• Recently, again in the case of Makufa v Makufa HH 374/20 although the facts were slightly different from the Simba case above, the court awarded 50% of the matrimonial home to the wife even though the husband had bought the property through a mortgage which he had serviced without any monetary contribution from the wife. The court took into consideration factors such as the duration of the marriage as the parties had been married for 29 years, the wife’s indirect contribution as she had taken care of the children after the husband had deserted the family, age of the parties as their most productive years had passed, deteriorated health of the wife and the type of life she had become accustomed to whilst the parties were living together.

• In Mutizhe v Mutizhe HH483/18 the court came to the conclusion that, the property subject to division, apportionment and distribution when spouses divorce, is property owned or belonging to either or both spouses at the time of the divorce. The property may have been acquired before, during the subsistence of the marriage or whilst on separation.

• This attitude of the courts can be traced as far back as 1993 and before. The Supreme court in Ncube v Ncube 1993 (1)ZLR 39 (SC)at 42B-D, in considering the meaning of the phrase “assets (property) of the spouses” in s 7 of the Matrimonial Causes Act, KORSAH JA stated that:-

“I take the phrase ‘assets of the spouses’ to include all such property as a spouse was possessed of at the time of the distribution, and not only what was acquired by one or the other or both the parties during the subsistence of the marriage, save such assets which are proved to the satisfaction of the court to have been acquired by a spouse, whether before or during the marriage 1. by way of inheritance; or 2. in terms of any custom and which, in accordance with such custom, are intended to be held by the spouse personally; or 3. in any manner or which have particular sentimental value to the spouse.”

Therefore, in simpler terms if the property was not obtained by (a) inheritance, (b) was not acquired in terms of any custom and is in terms of such custom supposed to be personally held, or (c) in any manner supposed to be of sentimental value to one of the spouses, then it falls for redistribution by the court at divorce.

The courts have even gone as far as saying that all the spouses’ property must first be put in “one basket”. The court then proceeds to redistribute the property from that “one basket”.

4. CONCLUSION

It can be drawn from the above that by using the “one basket” principle the court, when spouses are divorcing, invariably starts from an “in community of property” footing. Therefore, it can be concluded that marriages in Zimbabwe are out of community of property only till “divorce”. Therefore, a spouse must know from the beginning that although our law purports that marriages are out of community of property, when they divorce all the property is put in one basket and redistributed by the court from there, by taking into account several factors.

Advocates of women empowerment may argue that the redistribution mechanism favours the plight of women because many women would ordinarily not be awarded anything at divorce whilst they will have indirectly contributed to the spouses’ property by for example doing the household chores. However, the millennial era has seen more and more women excel and acquire more property that their male counterparts.

Hence the questions still stand: Are Zimbabwean civil marriages truly out of community of property or is it just a smokescreen? Is it perhaps time that the legislature engaged in some form of law reform in order to reflect the true facts on the ground?

 

BY: LACTRICIA MUMBA
LLB HONOURS (cum laude) (NELSON MANDELA UNIVERSITY)
LLM CANDIDATE- Sexual and Reproductive Rights (UNIVERSITY OF PRETORIA)

FOR: MESSRS COGHLAN AND WELSH LEGAL PRACTITIONERS

 

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