Online Reporter
Trust Maanda
Legal Position
IN terms of Section 7 of the Matrimonial Causes Act, Chapter 5:13 (the Act), the court which grants a decree of divorce may also order the decision of property that belonged to the spouses in the marriage.
Factors that the court considers in dividing the property between the spouses are varied.
The Act in Section 7(4) in particular, lays out the considerations that the courts must consider in on how to distribute assets of the spouses upon divorce. These factors include, the income earning capacity of the spouses; financial needs, obligations and responsibilities; standard of living, age, physical and mental condition of each spouse; direct and indirect contributions, value of pensions and gratuities; and the duration of the marriage.
A court has a wide discretion to exercise regarding the granting of an order for the division, apportionment or distribution of the assets of the spouses in divorce proceedings. Section 7(1) of the Act provides that the court may make an Order with regard to the division, apportionment or distribution of “the assets of the spouses including an Order that any asset be transferred from one spouse to the other”.
The rights claimed by the spouses under Section 7(1) of the Act are dependent upon the exercise by the court of the broad discretion.
The concept “the assets of the spouses” is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.
Section 7(4) of the Act requires the court in making an order regarding the division, apportionment or distribution of the assets of the spouses, and therefore granting rights to one spouse over the assets of the other, to have regard to all the circumstances of the case.
The question to ask should not be whether the asset is a matrimonial asset, but whether it is an asset of the parties subject to distribution in terms of Section 7 (4) of the Act. The fact that an asset was acquired before the marriage is just one of the many factors to be considered in the court’s exercise of discretion. The property is not excluded from consideration just because a spouse bought it before the marriage.
The decision as to a property division order is an exercise of judicial discretion, based on all relevant factors, aimed at achieving a reasonable, practical and just division which puts the parties to as a close a position as they would have been if the divorce did not happen.
The application of the Constitutional and regional and international provisions on equality is not just skewed in favour of women but aim to arrive at an equitable distribution in the circumstances of each case.
See the case of Mhangami v Mhangami HH 523/21.
Section 26 of our Constitution of Zimbabwe deals with marriage. Therein, it espouses the principle of “equality of rights and obligations of spouses during marriage and at its dissolution”. When deciding on the distribution of the assets of the spouses, the court should endeavour to grant an order that achieves equality.
Whilst equality must be achieved, Section 56 of the Constitution also lays down equality and non-discrimination as fundamental rights. Discrimination is prohibited on grounds such as custom, culture, sex and gender among others. This means that a woman, for example, cannot claim to be entitled to fifty percent assets on the basis that she is a woman, even where the rest of the factors do not support an equal share of the assets.
That decision will be an impermissible discrimination on the basis of sex or gender.
In considering the respective contribution of the parties to acquisition of matrimonial assets, the woman’s non-monetary contribution is considered as a contribution.
A working man who is married to a house wife for 30 years, for example, cannot claim that he is one who solely acquired the property. One cannot put a monetary value on the woman’s house keeping and performance of other chores to make the hoe a home.
In Usayi v Usayi SC 11-03 stated as follows; “…the Act speaks of direct and indirect contributions. How can one qualify in monetary terms the contribution of a wife and mother who for 39 years faithfully performed her duties as wife, mother, counselor, domestic worker, house keeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy?
In the Usayi case, the court awarded to the wife 50 percent of the sale price of the house.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
