BY FUNGAI CHIMWAMUROMBE & TAPIWA MUHLWA
The debate regarding the proprietary rights of spouses is very wide and following our discussion last week in which we proposed the establishment of trusts and creation of antenuptial contracts to safeguard the interests of spouses so as to avoid detrimental effects as discussed in the Chigwada matter featured last week.
The writers have been engaged by various individuals who want to know more about antenuptial contracts and herewith is the discussion on the contracts.
Getting married brings a lot of excitement and novelty into your life, but at the same time, it creates a new series of responsibilities and duties, requiring effort and commitment.
Just as a getting a new job, getting married has its own perks, but when managed right, can bring a lot of happiness and satisfaction as had been often advised.
Therefore, the truth of the matter is one will not be as certain if the marriage will completely work out and this is the reason why parties intending to marry need to think of ways and means to govern their proprietary rights in the event of the unlikely happening.
One way to guarantee certainty is enter into antenuptial contracts as shall be demonstrated.
Definition
An antenuptial contract is a written contract created by two people who are intending to marry each other.
It is a contract by the soon to marry which typically lists all of the property each person owns (as well as any debts) before the marriage and specifies what each person’s property rights will be as soon as they legally marry in respect of the already owned property and the property to be owned after marriage. Antenuptial contracts are also called prenuptial contracts or “prenups” in short and in Zimbabwe antenuptial contracts are provided for in Antenuptial Contracts Act (Chapter 5:01).
Validity of antenuptial contracts
Antenuptial contracts should conform to the requirements of a valid contract at law. As indicated above, antenuptial contracts are also creature of statute and their validity is governed by various statutes as shall be demonstrated below,
In terms of the Constitution of Zimbabwe
Section 78 (1) of the constitution becomes relevant in that it provides for one essential if not primary requirement or element of the agreement which is capacity.
The section in question prescribes that parties may found a family at eighteen years old. This basically means before reaching eighteen a party cannot be said to have entered into a valid contract.
b. In terms of Antenuptial Contract Act (Chapter 5:01)
Section 3 of the statute above regards the following for validity,
i.registration of the contract with the Registrar of Deeds
ii.signing of the contract by the parties
iii.certification by a duly registered Notary Public.
It suffices to mention that for an antenuptial contract to be valid it ought to be prepared by a duly registered Notary Public in Zimbabwe and the contract should carry a notarial stamp or a seal of the said Notary Public.
Notary Publics enjoy monopoly over the preparation of these contracts and this may be due to the importance attached to this agreement.
The Registrar of Deeds upon registration remains with the copies and the one of the copies will be sent to either of the Deeds Registries in Harare or Bulawayo and the copies shall be open for perusal upon payment of a certain fee by interested parties.
It also important that parties keep a copy of their contract and this can be done through their legal practitioner.
How do antenuptial contracts guarantee certainty of proprietary rights of spouses?
The key aspect that every Zimbabwe ought to be alive of is that all legally recognized marriages in Zimbabwe are marriages out community of property and out of profit and loss.
The import of this is that the property purchased during the subsistence of the marriage by either spouse and registered in his or her name becomes his or her personal property.
The spouse whose property is registered in his or her name enjoys all the rights that accrues from the right of ownership without having to consult the other spouse.
Marriage out of community of property and profit and ensures that each party bears his own obligations in the sense of debts etc. If one party drowns in debts the estate of the other spouse will not be affected and life continues as it ought to.
The challenges associated with the out of community of property set up
The meaning of marriage out of community of property and profit and loss has been discussed above and the dangers of the same ought to be discussed.
It is a given norm that in most marriages there is one spouse who enjoys a better financial position that the other and the ordinary thing is that the same spouse will probably acquire as much property in his or her name.
He or she can deal with the property in a manner he or she deems proper even though the other spouse would have made some contributions towards the acquisition of the property.
In some instances there can be a scenario where the wife allows the husband to register property acquired in his name as a way of honouring him as the head of the family.
The wife could have contributed when all was well and good in the marriage until the parties develop irreconcilable differences and decide to go their separate ways. In the eyes of the law, the property is deemed to belong to the husband as he is the registered title holder of the property.
The wife will be placed in a position where she has to prove the contribution she would have made to the property, which then becomes a very difficult task since she was not documenting any contribution she made to the property as she would have not anticipated her marriage ending due to divorce and not death.
In many cases, you have a party who has genuinely contributed losing out or maybe getting a nominal share of 25% or 30% depending on the judge who presided over the matter.
However, it suffices to mention the Marriages Act Chapter 5: 11 then introduces what is known as the equity principle and this principle is provided for in Section 7 (4) (g) which specifically provides that,
“… 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 continued between the spouses.”
This section then empowers the court to focus on achieving equity and a husband who has had a property registered in his own name and entertaining a belief that the property is exclusively his will end up with probably a 60% share and this is the uncertainty that is perpetuated by the Zimbabwean laws. It suffices to unpack what has been the courts’ attitude to Section 7 of the Matrimonial Causes Act below;
In the case of Mapiye v Mapiye HB-66-17 it was stated that the Court will group property as “his”, “hers” or “theirs” and after doing this, the court will equally divide the property labelled theirs and if equity is not achieved the court will look at what to take from the other to achieve equity.
The position on equitable distribution has also been enunciated by Guvava J in the case of Makani v Makani HC 2432/08 it was stated the whole thrust of s 7 of the Matrimonial Causes Act is to place the parties as far as is reasonable and practical in the position they would have been had the marriage relationship continued between them. A property may only be excluded from consideration if it was inherited, acquired in terms of custom or it is of sentimental value to a party.
What therefore, follows is that the Court will focus on the exceptions provided for by the law and if such exceptions cannot apply it then means that the other spouse will have a share whatever their contribution.
How then does an antenuptial contract guarantees certainty?
An Antenuptial contract specifies what each person’s property rights will be as soon as they legally marry in respect of the already owned property and the property to be owned after marriage. It suffices to mention that the Matrimonial Causes Act which advocates for equity, a principle which takes away certainty as to what share a party can get during the dissolution of the marriage recognises antenuptial contracts. Section Section 7(5) of the Matrimonial Causes Act, states that:
“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)”
An antenuptial contract can provide that anything purchased during the subsistence of the marriage will be jointly owned by both parties in equal shares.
The contract may also determine how future earnings will be distributed between the parties, as well as how the issue of debts will be dealt with in the event of the other party borrowing and then fail to pay off what will be due.
The Ante-nuptial contract may also govern how the property shall be distributed between the parties when the marriage ends through death or divorce and this is a good position as it eliminates possibilities of family bickering over the property.
If the parties have children from previous relationships the contract may include a property distribution that involves them, or any children that the couple shall have and therefore, issues to do with legitimacy crisis of children during the winding up of the deceased’s estate will be non-existent.
Conclusion
Antenuptial contracts clearly and unequivocally spell out the rights of each party in a marriage and as such there won’t be any doubt over what to do with the property that parties would have accrued prior to the marriage and during the subsistence of their marriage. Antenuptial contracts are by far one of the ways and means to ascertain certainty as to what will happen to one’s proprietary rights in the event of death or divorce and avoids the drama that many parties go through when contesting for their entitlements.
Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Tapiwa Muhlwa is a senior associate at Chimwamurombe Legal Practice and can be contacted on tapiwa@zenaslegalpractice.com
