The law governing the property rights of married persons is the Married Persons Property Act [Chapter 5: 12]. In terms of the Act, since 1929, marriages in Zimbabwe are 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 solemnized. People that are married out of community of property do not jointly own property, are not liable for the other’s debts unless they jointly acquire that debt, and the contracts and other juridical acts of one spouse are not binding on the other. For example, if the husband alienates or encumbers his wife’s property without her consent, she may recover it from the third party.
Distribution of Matrimonial Property Upon Dissolution of Marriage
The Matrimonial Causes Act [Chapter 5:13] governs distribution of property on divorce in Zimbabwe and applies to all marriages solemnized and recognized under the current Marriages Act. Property that was acquired before the parties were married remains their own personal property. Only property which is acquired during the subsistence of a marriage is subject to distribution, excluding properties acquired by way of inheritance, in terms of custom or assets of sentimental value. In distributing property, the court is guided by section 7 (4) of the Matrimonial Causes Act which sets out the guidelines for consideration and these are:
(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 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 and caring for the family and any other domestic duties;
(f) the value to either of the spouses 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;
(g) the duration of the marriage; and in so doing the court shall endeavor as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.
Contribution plays an important role in distributing matrimonial property. One is required to prove contributions made directly or indirectly in the acquisition or maintenance of immovable property, for them to have a claim on it. Direct contribution ordinarily requires direct proof, such as receipts towards purchase of particular things for example. Indirect contribution may be proved through things such as taking care of the family or looking after the home for example. In other words, it is not just financial contributions that are considered, but non-financial contributions as well.
In matrimonial disputes, the length of marriage is also considered. This stems from the fact that in a short marriage, there may not have been sufficient time to pool resources together in the acquisition of property such that separate property over the years becomes less so. It is mainly with lengthy marriage that the court definitely seeks to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses. Assets that are acquired after separation but before a decree of divorce may be claimed for distribution, since a marriage only terminates upon the grant of a decree of divorce.
Distribution of property upon death of a spouse
There are two instances that usually occur upon a spouses death, either a spouse dies with a valid will (testate succession) or a spouse dies without a valid will (intestate succession). The law recognizes the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse. By will, a spouse enjoys the right to dispose of his or her property to whoever he or she chooses. The testator can only include assets consisting of his or her own estate. Once a will complies with all the requirements of validity, its terms and conditions determine the question of succession to the deceased estate.
As previously alluded to, spouses in a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities. If a spouse has immovable property registered in his or her name, be it the house used as a matrimonial home, he or she has the right to dispose it by will to whoever he or she chooses to. It goes to the root of the fundamental right of property ownership. It is not correct to assert that by virtue of a marriage, a spouse is entitled to own property that is owned or registered in the name of the other spouse. Wills which comply with all the requirements of validity cannot be set aside on the basis of extraneous matters, such as that its execution has the effect of disinheriting the surviving spouse.
Section 26 (d) of the Constitution mandates the state to 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 child or spouse. This provision does not bar or prohibit a spouse from disposing of his or her property by will to another person other than the surviving spouse but only mandates the state to take necessary measures to protect the child and spouse. An example of that would be allowing a spouse to remain in occupation of the matrimonial house she lived with her spouse until she remarries notwithstanding the testamentary disposition disinheriting her of the house. The right to succeed to the deceased’s estate remains vested in the legatee or heir who then takes dominion when the spouse dies or remarries.
In the event of intestate succession, the Deceased Estates Succession Act gives rights to surviving spouses. The rights do not accrue during the subsistence of the marriage but after one of the spouses has died without a valid will. It is therefore imperative to note that the Deceased Estates Succession Act is not law that governs the property rights of married persons but only governs the property rights of a surviving spouse once the other spouse has died without leaving a valid will. Succession to an intestate estate is governed by the operation of provisions of Section 3A of the Deceased Estates and Succession Act. In that event, there would be no question of the deceased having had influence on the manner of the disposition of his or her estate before his or her own death.
These matters are settled by operation of the law at the time the need for succession intestate arises. Section 3A provides for the inheritance of the matrimonial home and household effects when a spouse dies intestate as follows:
The surviving spouse of every person who, on or after the 1st November, 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate
(a) the house or other domestic premises in which the spouses or the surviving spouse, as the case may be, lived immediately before the person’s death; and
(b) the household goods and effects which, immediately before the person’s death, were used in relation to the house or domestic premises referred to in paragraph (a);
where such house, premises, goods and effects form part of the deceased person’s estate.
If there are disputes over the inheritance plan, Section 68F of the Administration of Estates Act is then referred to. If one is to look at it deeply, this is one of the instances where Section 26 (d) of the Constitution borrows its approach to the protection to be awarded to the surviving spouse upon dissolution through death, when the spouse has been disinherited by testamentary disposition. This section is clearly instructive as to how to proceed when there are disputes over an inheritance plan. It however does not detract from the testamentary dispositions wishes and power, but is only more applicable in intestate succession.
In conclusion, Zimbabwe’s marriage laws, guided by the Married Persons Property Act and Matrimonial Causes Act, provide a framework for property rights during marriage, divorce, and death. The courts consider factors like contribution and financial resources when distributing matrimonial property, while testate and intestate succession laws dictate property distribution upon death. Understanding these laws is crucial for protecting property rights and making informed decisions about assets.
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