(SPONSORED) HOW DO THE COURTS DISTRIBUTE PROPERTY AT DIVORCE?

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All registered marriages in Zimbabwe; meaning marriages solemnized in terms of the Marriage Act (Chapter 5:11) or the Customary Marriages Act (Chapter 5:07) are dissolved through the Court. The Matrimonial Causes Act (Chapter 5:13), which became law in 1983 is the law which is used for dissolving registered marriages in Zimbabwe. When making a decree of divorce the court focuses on whether there has been irretrievable breakdown to the extent that the marriage cannot recover and whether either of the parties have lost love and affection for one another, if there are children; the court will ask who the custodian parent will be; that is which party will live with the minor children and it will grant access rights to the non-custodian parent. The court being the upper guardian of the minor child will also inquire on the issue of maintenance in respect of the minors. In specific circumstances, spousal maintenance is also considered. The court then looks at property distribution, which is specifically dealt with in terms of Section 7 of the Matrimonial Causes Act and in Section 7(4) this Act outlines the considerations to be made by the court in reaching just and equitable distribution of property at divorce.

Firstly, when distributing property, the court looks at the ‘assets of the spouses’ as stated in Section 7(1) of the Act. This has been interpreted by the courts to include all such property in the possession of each spouse, the property registered in the individual names of each spouse, that which was jointly acquired and the property jointly registered in the names of both parties. In 2020 landmark case of Mhora vs. Mhora, the Supreme Court awarded the wife a 50% share of the property registered solely in the name of the husband. The court did not limit its interpretation of ‘assets of the spouses’ to only mean the property jointly registered in both the husband and the wife’s names but also considered the property individually registered in the names of the parties. The only property which is exempt from distribution is that which is proved to have been acquired in terms of any custom and that which is intended to be held by the spouse personally or has sentimental value. The list of considerations as provided by S7(4) of the Matrimonial Causes Act begins by stating that the court shall have to consider all circumstances of the case. First on the list is:

  1. The income-earning capacity, assets, and other financial resources which each spouse and child has or is likely to have in the foreseeable future.

If for example one spouse has alternative accommodation or multiple assets in their name while the other has no alternative accommodation; the court will take that into consideration. The court will assess whether the spouses are employed or have methods of earning an income.

  1. The financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future.

This could include aspects like mortgage bonds or loans.

  1. The standard of living of the family, including the way any child was being educated or trained or expected to be educated or trained.

This consideration directly relates to the issue of maintenance which could pertain to the children or the other spouse.

  1. The age and physical and mental condition of each spouse and child.

The age of the children affects the issue of custody. If the children are under 18, then the court will consider the custodian parent; whose accommodation is a priority as it also affects the kids. One or both spouses might have medical conditions which may either be long-term or permanent and they come with medical expenses which need to be factored in by the court.

  1. 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.

This consideration is most often misinterpreted as being the most essential, with most people assuming that direct contribution is the most paramount consideration. It is one of many which are considered in relation to others. The Supreme Court in 2003 in the matter between Usayi vs. Usayi echoed the sentiments of the Matrimonial Causes Act by stating;

It is not possible to quantify in monetary terms the contribution of a wife and mother

who for many years faithfully performed her duties as wife, mother counsellor,

domestic worker, housekeeper, and day and night nurse for her husband and children.” Direct contribution therefore relates to who paid for the acquisition of the property while indirect looks at duties and obligations instead of money alone.

  1. The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage. In the Mhora judgment the court considered that the husband was a pensioner while the wife was unemployed.
  2. The duration of the marriage is also included in determining which assets are shared between the parties.

Those who have been together for longer are likely to have their assets and lives intertwined therefore the distribution of property will differ accordingly. The courts in reaching this decision, is guided by evidence which determines the value awarded to each party and is subjective to each case.

Since 1983, the courts have gone at length to explore the considerations made in terms of the Matrimonial Causes Act with the view of reaching equitable distribution, which is not only limited to direct contribution. The Act considers the different circumstances between women & men as less than 24% of Zimbabwean women own property. It would be remiss to expect that with the reality of status of women and men in Zimbabwe, direct contribution be the only or most important consideration. The law provides for a more comprehensive approach which is a welcome and progressive method of reaching equitable distribution of property at divorce.

By Danai Chirawu

For feedback, questions and comments please feel free to email – zwla@zwla.co.zw.  Look out for the next article in this column next week and the Kwayedza every Thursday.

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HERALD

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