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Matrimonial
property rights at divorce
Vote Muza
January
13, 2005
http://www.fingaz.co.zw/fingaz/2005/January/January13/7526.shtml
People take
marriage vows with high hopes of spending the rest of their lives
together, experiencing the highs and lows of such a relationship.
However, it
has become a common occurrence that relations irretrievably break
down, culminating in divorce.
The causes of
divorce are better explained within the realm of sociology. But
in this column, which is a forum for legal discourse, we shall only
deal with the contentious issue of property distribution at divorce.
Where parties
divorce and there is no mutually agreed sharing of matrimonial property,
the courts will intervene when called upon to do so. The courts
are usually invited to arbitrate where the divorces are bitter or
are associated with antagonism, mistrust and/or unnecessarily prolonged.
Each spouse
will often try to enrich itself at the expense of the other, and
some claims for property distribution are malicious and solely meant
to settle a score with the perceived guilty party.
As observed
above, where parties do not agree on a sharing of property, then
such a distribution will be left to judicial discretion. Such discretion
must, however, make a careful overall assessment of the circumstances
of each case.
The Matrimonial
Causes Act (the Act) (Chapter 5:13) lays down guidelines that courts
must follow when making distribution orders. These guidelines are
also influenced by the nature of the parties’ marriage. Because
various forms of marriage / unions exist, and these are:
A civil marriage in or out of community of property contructed in
terms of the Marriages Act Chapter;
- A customary
marriage in terms of the Customary Marriages Act Chapter;
- An unregistered
customary union entered after payment of traditional bride price;
- Cohabitation,
where neither payment of lobola nor registration ensues.
In this discussion,
reference shall only be made to a civil marriage contructed out
of community of property, because this is the most common form of
marriage parties contruct, unlike that in community of property
which has sparingly be contracted since 1929.
There are sufficiently
documented cases of female spouses who contributed extensively directly,
or indirectly, financially of non-financially, but who walked out
of their matrimonial homes with little or nothing.
This trend,
illustrating gender-on-gender discrimination, has gradually been
reduced because of realisation of the need to fight for their rights
by women.
Regarding those
cases that end up in the courts, judicial officers have not been
hesitant to recognise the role played by housewives.
The Act has,
in succinct terms, declared that a woman’s non-financial contribution
— that is, the housekeeping duties and raising of children –— is
valuable, thus justifying the granting of a fair portion of the
estate upon dissolution of marriage.
This correct
and progressive application and interpretation of the law is socially
desirable not only for its promotion of gender rights, but most
importantly by asserting equal treatment of men and women in society.
Property that
may be susceptible to sharing is only that acquired during the subsistence
of the marriage and that the parties jointly or individually contributed
into the union.
Further, in terms of the Act, the power of the court to make an
order of distribution shall not extend to assets which are proved
to the satisfaction of the court to have been acquired, whether
before or during a marriage:
- by way of
inheritance;
- in terms
of custom and are personal items in terms of custom — for example,
mombe yeumai under Shona custom; or
- in any manner
that is of sentimental value to the spouse concerned.
In the case
of Mujati VS Mujati decided in 1987, a rural wife who had toiled
tilling land and selling crops and who had undertaken extensive
improvements to the rural home was awarded one-third of the total
assets.
This order of
distribution was criticised in several academic contributions as
having been unjust, and the presiding judge was dismissed as a sexist
insensitive to the plight of women.
The Act does
not establish a uniform formula to be applied to distributions and
only lays down guidelines. This weakness of the Act has led, at
times, to an inconsistent pattern of sharing as the courts struggle
to equitably reward the parties for their material and non-material
contribution into the family.
The major cause
of the confusion has been the difficult method of quantifying, usually,
a female spouse’s housekeeping contributions in monetary terms.
The confusion
has become notable with regards to customary unions because the
interpretation of this law has generally never been an easy task.
A common example
is the often-quoted example that, under Shona custom, all matrimonial
property belongs to the husband. It has at times been said that
an African Shona woman’s entitlement to property at divorce must
be restricted to that known as mawoko. This is property that the
woman will have acquired only through the use of her own hands.
However, recently,
judicial pronouncements appear to have criticised this position
and declared it discriminatory, unjust and anachronistic because
of its failure to align with latest legal developments regarding
human rights.
At times husbands
do get discriminated against during property sharing at divorce,
but reports of such cases are rare.
As such, the
law, since the attainment of independence, has deliberately democratised
the entire family law by acknowledging that even if a woman did
not directly or indirectly purchase property, by looking after children
and raising them, she performed a role warranting compensation.
*Vote Muza
is a lawyer with Gutu & Chikowero legal practitioners.
Email: gutulaw@mweb.co.zw
website:
www.gutulaw.co.zw
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
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