“THE sooner married couples realise that marriage is not a business arrangement where they come together in matrimony for convenience to acquire property separately, while keeping receipts and other documents for future use in court, the better for everyone. The courts recognise that parties come together in Holy matrimony for their common good and the good of their children,” Justice Nicholas Mathonsi.
The above statement, made during a divorce hearing, gives a glimpse into the tension and acrimony that normally surround divorce cases.
A quick look at the divorce of former minister of local government Ignatius Chombo and his then wife, Mirian, undoubtedly opened the lid on how some of the late former president Robert Mugabe’s ministers went on a foray of primitive accumulation of wealth.
In simple terms, the truth brought out in this case is that during divorce, property or assets of the spouses become the centre of the battle because nobody in the marriage wants to leave empty-handed, while others do not want to part with what they think the other spouse does not deserve.
This is where the State is invited into what would otherwise be private business — the division, apportionment, or distribution of such assets upon the termination of marriage, as guided by Section 7 of the Matrimonial Causes Act, herein referred to as the Act.
Custody of children, dealt with in the last article, and property sharing coupled with maintenance are always the major sticking points that have made divorce somewhat ugly, especially when the estranged couple cannot seem to find common ground.
In the Chombo divorce case, it was argued that there was an alleged attempt by the minister to hide assets from his estranged wife by registering them in a trust.
This is because, at law, property registered in a trust is not subject to divorce proceedings, and the alleged attempt to conceal assets in a trust was seen as a way of depriving the other spouse of a fair share.
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Our starting point is the constitution, which, according to Section 26(c), gives the State power to fairly intervene in the sharing of property upon dissolution of marriage, whether under general or customary law.
“The State must take appropriate measures to ensure that (c) there is equality of rights and obligations of spouses during marriage and at its dissolution.”
In Zimbabwe, marriages are in community of property unless expressly excluded through the signing of an ante-nuptial contract. This basically means that all property acquired by the couple before and during the subsistence of the marriage is subject to sharing upon divorce.
Jurisprudence has been established by our courts that upon a decree of divorce being issued, courts must consider spousal property rather than matrimonial property during the sharing of assets.
This was decided in Lock v Lock, where the court reasoned: “The concept is clearly intended to have assets owned by the spouses individually (his and 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.”
In most instances, couples fight over the level of contribution to the purchase of assets, and there has been a mistaken belief, especially among some men, that stay-at-home wives who do not earn any income must walk out of the marriage empty-handed.
This belief stems from the view that their contribution to the marriage cannot be quantified in monetary terms. However, the law and the courts have taken a different view and have held that: “It is both the direct and indirect input of the spouses which leads to property acquisition.”
The courts reasoned in Usayi v Usayi, making it clear that not only monetary contributions should be taken into account when property is being shared. Emotional and domestic contributions must also be considered.
Basically, one spouse may go out to conquer the corporate world and earn money, while the other remains at home cooking, washing, cleaning, and tending to the emotional needs of the children and even the other spouse, ensuring they are at the top of their game.
This contribution, although not quantified in monetary terms, can and should be considered as the other spouse’s contribution, leaving them deserving of a fair share of the property.
The Act, however, does not provide a single prescription for the sharing of property. It also takes into account other important factors, giving courts wide discretion in arriving at a just outcome.
In Usayi v Usayi, the court stated: “It is trite that in matters involving the distribution of property, the court has to exercise its discretion in deciding what is a just and equitable distribution of the parties’ property.
“As a result, a lot of authorities, in construing s7 as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses consequent upon the grant of a decree of divorce.”
The other factors listed in Section 7 are as follows:
Assets division, maintenance orders
(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to—
(4) In making an order in terms of subsection (1), an appropriate court shall have regard to all the circumstances of the case, including the following—
(a) The income-earning capacity, assets, and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
(b) The financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
(c) The standard of living of the family, including the manner in which any child was being educated or trained, or was expected to be educated or trained;
(d) The age and physical and mental condition of each spouse and child;
(e) The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home, caring for the family, and performing any other domestic duties;
(f) The value to either spouse or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage; and
(g) The duration of the marriage.
In so doing, the court shall endeavour, as far as is reasonable and practicable and having regard to their conduct, to place the spouses and children in the position they would have been in had a normal marriage relationship continued.
(5) In granting a decree of divorce, judicial separation, or nullity of marriage, an appropriate court may, in accordance with a written agreement between the parties, make an order with regard to the matters referred to in paragraphs (a) and (b) of subsection (1).
In Chombo v Chombo, it was reasoned that: “In terms of the provisions of the Matrimonial Causes Act, the court must endeavour, as far as is reasonable and practicable and having regard to their conduct, to place the spouses and children in the position they would have been had a normal marriage relationship continued between the spouses.”
Conclusion
Divorce proceedings in Zimbabwe often involve complex issues surrounding the division of property and maintenance orders.
The legal framework established by the Matrimonial Causes Act provides a structured approach to addressing these concerns, emphasising the importance of both direct and indirect contributions to the marriage.
As demonstrated in cases such as Usayi v Usayi and Chombo v Chombo, the courts strive to ensure that the distribution of assets is just and equitable.
Ultimately, the objective is to uphold the rights of both spouses and safeguard the welfare of any children involved, reflecting the broader principles of fairness and equality enshrined in the Constitution.
- Mhlanga is a law student at the University of Zimbabwe.
