Sharing property at divorce

When the courts in Zimbabwe hear cases of divorce, more often than not, issues of what is called ancillary relief are included. This refers to issues of property sharing — both movable and immovable and maintenance of children and former spouse. Two of the most common myths in relation to sharing of property are that, first, courts share property on a 50-50 basis and second, that the person who would have commenced the divorce proceedings will be penalised on the basis that they do not want to remain married to the other person anymore.
Nothing can be further from the truth.

In dividing property at divorce, courts are guided by the provisions of the Matrimonial Causes Act. Each case is obviously different and will, therefore, be considered on its own merits.

The Constitution states in Section 26(d) that the State must take appropriate measures to ensure that in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.

The courts (the High Court for marriages registered in terms of Chapter 5:11, formerly Chapter 37 or Chapter 5:07, formerly Chapter 238) and the Magistrate Courts for Chapter 5:07 marriages only) are empowered to make orders in relation to the division, apportionment or distribution of the assets of the divorcing couple.

This can also include making an order that any asset be transferred from one spouse to the other, for instance, this could be a house or a motor vehicle.

Certain property acquired before or during a marriage is excluded from this division and this is specifically property acquired by one spouse by way of inheritance, for instance the wife or husband may have been a beneficiary in the deceased estate of someone else.

The property that was given to them as a beneficiary will not form part of matrimonial assets. Property that a spouse acquired by way of custom and such custom requires that they hold that property personally is not also subject to division. Property that is of sentimental value to the spouse concerned and acquired in any manner by a spouse is also not subject to division.

The English dictionary defines sentimental value as the personal value of an object, derived from the personal memories associated with it. The major challenge so far is that the law has not defined sentimental value.

The applicable act has provided guidelines on what courts should look at when dividing property at divorce. These guidelines are over and above all other circumstances which may be peculiar to a particular case and they relate to both movable and immovable assets and maintenance.

In detail, the guidelines are as follows: (1) the income-earning capacity, assets and responsibilities which each spouse and child has or is likely to have in the foreseeable future.

This requires the court to look at issues such as how much each spouse is likely to make in the future and also acquire in terms of assets; (2) the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future; (3) the standard of living of the family including the manner in which child was being educated or trained or expected to be trained or educated; (4) the age and physical and mental condition of each spouse and child; (5) the direct and 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 is one of the most important guidelines especially in relation to women.

It means that even the contribution of a housewife who may not have worked formally is taken into account. In one very interesting case of Usayi v Usayi heard in the Supreme Court, it was stated that 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.

It is not possible to place a monetary value on the love, thoughtfulness and attention to detail that she put into all the routine and sometimes boring duties attendant on keeping a household running smoothly and her husband and children happy, nor can one measure in monetary terms the creation of a home and therein an atmosphere from which both husband and children can function to the best of their ability. In light of these various and many duties, one cannot say, as is often remarked, “throughout the marriage, she was a housewife. She never worked”.

It is precisely because no monetary value can be placed on the performance of these duties that the Matrimonial Causes Act speaks of, “direct or indirect contribution”. (6) The value to either of the spouses or to any child of any benefit, including a pension gratuity, which each spouse or child will lose as a result of the dissolution of the marriage.

At the end the court is supposed to reflect and as far as possible put all the parties in the position they would have been had a normal marriage relationship continued. This is what is referred to as the statutory target. Some of the decisions made by the courts especially in relation to immovable property are as follows: If a house is jointly registered, the starting point is that it should be shared on a 50-50 basis unless there are compelling reasons not to do so; a person who is awarded custody can be given the right to stay in the matrimonial home until the youngest child turns 18 years and the house is then sold and shared; houses can be shared in different shares for instance one party may be awarded 60 percent and the other party 40 percent.

The court will order that the house be valued and whoever can buy out the other party should do so and if this does not happen within a specified period, the house is then sold and proceeds shared. In another case of Gonye v Gonye, the Supreme Court stated that matrimonial assets refers to property that was also acquired before marriage and even whilst on separation — that means assets owned individually and also jointly.

These are subject to division as appropriate. In some cases, property may be registered in the name of a company but in essence, the company and the director are one and the same and so the court can also order that such property be shared.

The Matrimonial Causes Act also allows parties to agree on the division of their movable and immovable assets. They will reduce this to writing in a document called a consent paper. There have, however, been some unfortunate cases where women mostly agree to distribute property with their spouses but they later on state that they were not fully aware of what they were signing.

Therefore, it is imperative that the parties agree and understand the implications of the consent paper before signing. Courts are reluctant to reverse consent papers especially based on the legal principle of, “signer beware”.

Slyvia Chirawu is a lawyer by profession and current national director of Women and Law In Southern Africa. She is a gender, women’s rights, family law and law of succession expert. Chirawu is a Hubert Humphrey Alumnus and she writes in her personal capacity.