Property rights in marriage

So often when a couple is about to tie the knot, the thought of love and a “happily ever after” is what is on their minds. Rarely do parties think about who will be owning what in the marriage, or worse still what will happen in the event of a divorce. If such thoughts cross their minds, the illusion often is that everything, right down to the last spoon, is equally owned as there is a legal marriage. This however is not the case. It is therefore important to understand the law on matrimonial property especially before entering into the marriage so that you are well informed and make good decisions.

In Zimbabwe, the system that governs property rights in marriage is known as out of community of property. This system automatically applies whenever parties contract a valid marriage ie a marriage under the Marriages Act (Chapter 5.11) or Customary Marriages Act (Chapter 5.07).

This means that when Simba and Fungai get married, unless they make a conscious effort to be governed by another system, the regime that will apply to their property is that of out of community of property. The conscious effort being referred to is that of signing an ante nuptial contract which shows that the parties want the system to govern their property to be in community of property.

We shall proceed to look at what these two systems actually mean as well as the advantages and disadvantages of each. Out of Community of Property means that there basically is no joint estate. If a house is bought and it is registered in Simba’s name, that house remains his sole property. This is despite the fact that Fungai has also contributed towards the purchase of the house or that the house is being used for the benefit of the whole family. Upon divorce therefore, the starting point would therefore be that Simba is the owner of the house. During the subsistence of the marriage, Simba can therefore administer this property as he wishes like placing a mortgage bond on it or even selling it.

Joint ownership would therefore provide a solution for the predicament that some spouses face especially if they are home makers and not engaged in paid labour. Joint ownership is whereby the names of both spouses are registered on the property, then both parties become the owners of the property in equal shares.

Out Of Community Of Property also means that the spouses are not liable for the debts of the other party. If Simba fails to pay back a loan owed to the bank, the latter can only recover its debt by attaching property that is registered in Simba’s name. The residential stand registered in Fungai’s name cannot be attached even though Funagai is his wife.

Since the property is owned separately and therefore allowing each spouse to freely dispose of his/her assets, each party can make a separate will. A spouse however cannot write a will disinheriting the surviving spouse of the matrimonial home. Another point to take note of is that assets accumulated before the marriage remain the sole property of the parties.

The advantages of this system can be summarised as follows: Since this is the system that applies automatically to all our marriages, no extra effort, expense or paperwork is required. Whatever each party gained before the marriage remains their sole property. The administration of the property in this regime is not complicated as the owner of the property simply makes independent decisions regarding it. Each spouse is protected against the debts of the other spouse.

The disadvantage of this system is that if one spouse has no form of income and no property is registered in their name, then they basically have no assets. A consequent disadvantage to this is that the creditworthiness of such a spouse is lower than that of their partner. And lastly, property can be disposed of without the knowledge or approval of the other party.

We shall proceed to look at In Community Of Property. In this system, both parties are the owners of the joint estate. The assets that were gained before the marriage also form part of this joint estate. What is not included is for instance, a car that Simba’s father left for Simba as an inheritance on the clear understanding that the car would not be part of any joint estate.

The consequence of this type of system is that all property will belong to the husband and wife in equal shares but both will share in the losses of the estate. Both parties can administer the property. However if there is a dispute on, for instance, whether to sell the house or not, the husband’s decision is the one that prevails.

The advantage of this system is that each spouse automatically has an equal share in the property that has been gained during the marriage. The other advantage is that the creditworthiness of the spouses is the same during the marriage and therefore each spouse has an equal opportunity for applying for a loan at the bank for example.

Hopefully the above has provided some insight into the law regarding property rights in marriage so as to help parties to make informed decisions before saying, “I Do”.

 

Written By: Fadzayi Doreen Mutavayi, Legal Officer. For feedback, questions and comments please feel free to email @[email protected] or to send a whatsapp message 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 family law cases, Gender Based Violence Issues, Human trafficking cases call our toll free number 08080131: hotlines 0776736873 /0782900900