The fear of losing property

One of the greatest fears of mankind upon divorce is fear of losing property. Most parents feel like property represents stability for children whilst to others it represents their own financial stability. Property might be in form of movable or immovable, corporeal or incorporeal and tangible or intangible property. Proprietary issues are always ancillary to the divorce. How property rights are dealt with on divorce differ from one jurisdiction to another. This article will focus on the Zimbabwean divorce law and narrow it down to sharing of property or assets acquired during the subsistence of the marriage.

Every person has rights

The Constitution of Zimbabwe, 2013 on section 71(2) provides that, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose all forms of property. This includes even on divorce. The principal Act that governs division of property is the Matrimonial Causes Act [Chapter 5:13], hereinafter referred as the ‘Act’. Section 7(1)(a) of the Act provides that, in granting a decree of divorce, judicial separation or nullity of marriage, a court may make an order with regard to the division, apportionment or distribution and transfer of the assets from one spouse to the other.

An order made may contain consequential provisions as the court thinks expedient for the purpose of giving effect to the order for purposes of securing that the order operates fairly. It may without prejudice, order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order or confer on any trustees of any property which is the subject of the order such powers as appear to be necessary. Subsection 3 of the same provision goes further to limit the power of a court in making an order, not to extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage by way of an inheritance, or in terms of any custom are intended to be held by the spouse personally, or which have particular sentimental value to the spouse concerned. In making an order a court shall have regard to all the circumstances of the case including the direct or indirect contribution made by each spouse to the family. In summation, Zimbabwean jurisprudence has evolved on the subject based on the fact that all civil marriages in Zimbabwe are out of community of property, meaning that there is no joining of estates and each spouse keeps his/her estate separate.  Upon divorce, a court must begin by sorting out the property into three lots, which are termed ‘his’, ‘hers’ and ‘theirs’. This principle was enunciated in the case of Takafuma v Takafuma 1994 (2) ZLR 103 (S). In that decision the Supreme Court said the court does not simply lump all the property together and then hand it out in as fair.  It will concentrate on the third lot marked ‘theirs’ and then apportion this lot using the criteria set out in section 7(3) of the Act. As a jointly owned property each spouse owns a 50% share in that property. The question that arises is whether awarding each spouse a 50% share as presumed from joint ownership would achieve the objective to place the spouses in the position they would have been in, had a normal relationship continued as highlighted in Simba v Simba HH410/20. For instance, does the apportionment secure for each spouse the advantage they can fairly expect from having been married to one another, and avoids the disadvantages to the extent they are not inevitable of becoming divorced; or is this a case where the justice of the case requires that a spouse’s share be awarded to the other? If so, how much of that share? For any inquiries relating to Divorce or Family law matters, kindly get hold of our Family Law Practice Group on info@mmmlawfirm.co.zw