Zimbabwe Diaspora News (Newsletter No. 1)
By Davison Kanokanga SC
Marriages in Zimbabwe, be they in terms of the Marriage Act (Chapter 5:11) or the Customary Marriages Act (Chapter 5:07), are out of community of property. Now, what does this mean? It means that there is no joint estate. The parties retain their respective estates as their own property and each administers his or her own estate independently. This is so notwithstanding the fact that the parties may have at their wedding exchanged vows to the effect that “what was mine is now yours.” With marriages out of community of property, one is not liable for their spouses’ liabilities. This means that a financial judgment against your spouse cannot be used to attach assets which are registered in your name.
I am aware that a number of people in the diaspora are investing in immovable property in Zimbabwe. There is nothing wrong with this. In fact, it is a wise thing to do. The unfortunate thing however is that at times spouses agree out of love and trust that the immovable property be registered in the husband’s name or the wife’s name. What such spouses may not be aware of is that once the property is registered in one of the parties name, such party by virtue of our marriages being out of community of property, is at law at liberty to deal with the property as he or she deems fit. This means that one can lawfully sell or donate the property without their spouse’s consent notwithstanding the fact that the other spouse may have made significant financial contributions towards the purchase of the property.
Even in a case where one did not contribute anything towards the purchase of the property, if the property is registered in their name, they are deemed to be the lawful owner of the property. In the event of a divorce, what the court does is to put the matrimonial assets into three lots which are termed “his”, “hers” and “theirs”. Under the “his” lot fall all property registered in the husband’s name whilst under the “hers” lot falls all property registered in the wife’s name. Under the “theirs” lot falls jointly owned property. This was set out in the case of Takafuma vs. Takafuma 1994 (2) ZLR 103 at 106 B – C where McNally JA stated”
“the duty of a court in terms of section 7 of the Matrimonial Causes Act involves the exercise of a considerate discretion but it is a discretion which must be exercised judicially. The court does not simply lump all the property together and then hand it out in as fair a way as possible. It must begin, I would suggest by sorting out the property into three lots, which I will term “his”, “hers” and “theirs”. Then it will concentrate on the third lot marked “theirs. It will apportion this lot using the criteria set out in section 7 (3) of the Act. Then it will allocate to the husband the items marked “his” plus the appropriate share of the items marked “theirs”, and the same to the wife. That is the first stage.”
The court went on to say that if looking at the overall result it must assess whether the objective of placing the spouses in the position they would have been in had a normal marriage relationship continued is achieved. If not, the next stage would be to consider taking away from one or other of the spouses something which is actually “his” or “hers” see Ncube vs. Ncube 1993 (1) ZLR 39
In light of the above you might want to consider joint ownership of assets or having your assets registered under a Trust.
While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.
Copyright © Kanokanga & Partners 2015. All rights reservedNext Step