The division of the assets of the parties upon divorce is governed by the Matrimonial Causes Act (Chapter 5:13) (the Act), in particular section 7. The Act does not apply to those who are in an unregistered customary union. This does not mean that those in an unregistered customary union are left without a remedy; however different principles of law apply.
When granting a decree of divorce or thereafter, an appropriate court may make an order for the distribution of the assets of the spouses. The issue does not fall for determination where the marriage is still subsisting and no divorce order has been granted. In Zimbabwe marriages are generally out of community of property in terms of the Married Persons Property Act (Chapter 5:12) and each spouse is at liberty to deal with their property as they wish during the subsistence of the marriage.
It is important to note that the Act does not use the words “matrimonial property” but rather “assets of the spouses”. Essentially, even assets acquired before the marriage are subject to distribution and this crushes the misconception that only assets acquired during the subsistence of the marriage are subject to distribution upon divorce. Certain assets are however excluded from distribution by the court:
- Property acquired by way of inheritance;
- Property acquired in terms of any custom and which, in accordance with such custom are intended to be held by the spouse personally; or
- Property acquired in any manner and which have particular sentimental value to the spouse concerned.
There is a misconception that the assets of the parties that are subject to distribution should as a matter of law be distributed equally between the parties. The correct legal position is that, the court is guided by Section 7 (4) of the Act in determining how the assets of the parties should be distributed. One can do no better than cite the provisions of the Act in Section 7(4);
“7(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 –
- the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
- 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;
- the age and physical and mental condition of each spouse and child;
- 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;
- the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which each spouse or child will lose as a result of the dissolution of the marriage;
- the duration of the marriage;
and in so doing the court shall endeavour 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 continue between the spouses.”
Among other factors stated in the
“…the Act speaks of direct and indirect contributions. How can one qualify in monetary terms the contribution of a wife and mother who for 39 years faithfully performed her duties as wife, mother, counselor, domestic worker, house keeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy?
In the Usayi case the court upheld the award of 50% to the wife of the sale price of the house.
The distribution of the assets of the spouses upon divorce is not as simple as it may appear in this article. Facts differ from case to case and it needs the trained legal mind to sift through the various sources of law in order to properly advise and represent a client. It is therefore advisable to engage a lawyer with experience in divorce law when instituting divorce.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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