adminThe Herald dated September 28, 2015 had a headline titled, “Call to protect spouses’ property rights”. This created a lot of debate and the feedback that we got through our toll free line and Whatsapp platforms prompted Zimbabwe Women Lawyers Association to look at the issue of ownership of property during the subsistence of a marriage. Many questions were raised as mostly women wanted to understand the stipulations of the law with regards to ownership of property during marriage as many admitted that they were under the impression that it was 50 /50 ownership of property.
The Married Persons Property Act in section 2 (1) clearly spells out that parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an ante nuptial contract before their marriage is solemnised.
Most married persons are under the assumption that when they get married what belongs to the other automatically belongs to the other party. This is not true as the meaning of “out of community of property” is that whatever each spouse amassed on their own before they were married is not subject to joint ownership.
It also means that the property that parties acquire during the subsistence of their marriage is owned by the person who has a title over that property be it movable or immovable.
It also then follows that when people are married out of community of property the spouses are not at any given point liable for the other’s debts unless they jointly acquired the debt.
What does this therefore mean for any party that is married?
What this means is that unless properties that are owned during the subsistence of marriage are co-owned (meaning to say the properties have both names of the said spouses on the deed conferring ownership) – the one whose name appears on the deed of title is the owner and enjoys a real right to that property.
This confers sole ownership to the holder of the title. The party with ownership can decide to sell or dispose of it as they please without being obligated to consult the other.
The other party in this instance has a personal right over the property which allows them to use the property as a spouse of the owner. A spouse will have the right of occupation if it is a house, for example, which will be conferred to them because they are married to the owner of that said property.
Personal rights to properties acquired during the subsistence of a marriage are regarded by law as being inferior to the real rights that confer ownership. It must be noted that having one’s name as a beneficiary does not confer ownership of the property.
Challenges posed by this position of the law
This unfortunate and unfair position of the law makes vulnerable the spouse who, for one reason or another, does not have a real right over a property but has indirectly or directly contributed to the acquisition of this property.
Our experience at ZWLA has been that men are selling properties without the knowledge of their spouses. Some take out loans and place their houses as surety and when they fail to pay, the house is attached and sold leaving their wife and children homeless.
What the law ignores is that in most instances in a marriage women are never given the room to make decisions with regards to properties let alone being allowed to own same or have properties registered in their names by their partners.
This provision of the law fails to also acknowledge that in most marriages, whilst one party is making contributions towards acquiring a property the other party is either paying other bills or making indirect contributions such as cooking for builders and managing the building of the house from beginning until completion.
In most marriages women usually cater for the day to day necessities such as food, buying clothes and others whilst men invest in acquiring properties.
This then means that the men will be unjustly enriched because for them to be able to purchase a property there is someone who is catering for their survival needs and comfort thus freeing their resources for investment into property.
The irony is that upon dissolution of a marriage and upon the death of a spouse there is better protection with regards to properties. This is not so during the subsistence of a marriage which is leaving most women and children destitute when their partners are irresponsible and dispose of their properties.
The opportunities presented by the new Constitution
The law on ownership of properties during the subsistence of a marriage is unjust and unconstitutional as interpreted in line with the provisions of the 2013 constitution.
The new constitution has provided for substantive rights for women by clearly stating in section 26 (c) that there is equality of rights and obligations of spouses during marriage and at its dissolution. In the same vein section 56(1) of the constitution provides that all persons are equal before the law and have the right to equal protection and benefit of the law. This therefore means that men and women should enjoy the same rights.
There is need to focus on law reform and speed up the realignment process of marriage laws to the new constitution so that parties in a marriage are duly protected with regards to ownership of property.
- Written By: Tariro Tandi, Transformative Justice Manager. For feedback, questions and comments please feel free to email @[email protected] or to send WhatsApp messages on 0777 828 201 and we will definitely address them. Look out for the next article in this column next week and the Kwayedza every Thursday. Let’s discuss the law.For a 24 hour response to Gender Based Violence Issues, call our toll free number 08080131: hotlines 0776736873 /0782900900
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