FUNGAI CHIMWAMUROMBE & TAKUNDA GOMBIRO
Property distribution at divorce is not an easy task. It is difficult for both the Courts and the divorcing parties. In as much as individual parties may have wanted to go their separate ways with all the property that is in their names, this is not necessarily the position.
Amongst the various considerations by the court, the law allows a party to prove to the court that they had a certain contribution in the acquisition of the property.
Such contribution does not have to be tangible i.e monetary contribution. The court will allow proof of intangible contribution such as moral support, love and affection to justify awarding a portion of property to be given to a party regardless of the fact that they did not contribute, financially, to the acquisition. This article will concentrate on what the author has termed, “the Contribution principle” in the distribution of property upon divorce.
What is the Contribution Principle?
This principle is derived from section 7 of the Matrimonial Causes Act. It states that the Magistrate Court and the High Court have the power, in distributing property at divorce, to take into account ALL the property of the parties and distribute such property assessing each property individually and seeing the extent of contribution (financial or otherwise) by each party to the acquisition of such property.
This principle appears to come out clearly from a passage from the judgment of the case of Makani v Makani HH-74-10 by Guvava J (as she then was) as follows:
“It seems to me that a proper interpretation of this provision allows a court, in making an award, to take into account all the property acquired by the parties whether before or during the marriage provided that it does not fall in the exceptions outlined in the section.
I take this view because s 7 (4) of the Matrimonial Causes Act does not just look at the question of contributions when a court is called upon to distribute property upon divorce. The court is enjoined to take into account all the factors which are set out in subsection 4 and then make an equitable distribution. Clearly it was the intention of the legislature to include all the property owned by the parties.
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. The plaintiff has not sought to rely on any of these exceptions. His only argument was that he acquired the property prior to his marriage to the defendant. That in itself is not in my view sufficient and all property proved to belong to the plaintiff would fall for distribution in terms of s 7.”
As of today this is what the courts have said of the contribution principle in Zimbabwe in the case of Ncube v Maglazi HB 77-11:
“It is now trite law that a spouse’s contribution should not only be confined to tangibles, but intangibles as well. It is now settled law in our jurisdiction that our courts will not hesitate to lean in favour of women on the principle of unjust enrichment, all in the spirit of law development and justice.
I dealt with this principle extensively in Ntini v Masuku 2003 (1) ZLR 638(H), see also Mtuda v Ndudzo 2000(1) ZLR 710(H); Mashingaidze v Mashingaidze 1995 (1) ZLR and Chapeyama v Matende and another 1999(1) ZLR 534(H).”
The contribution principle will only be excluded in relation to assets of sentimental value, assets acquired by inheritance or acquired in terms of custom.
Whether or not the assets were acquired before the marriage is not relevant. Such assets will be available for distribution. Even those assets that are acquired after separation of parties but before divorce appear to be viewed by the courts as matrimonial property and will be available for distribution.
Authority on this aspect can be obtained from Justice Guvava’s sentiments in the case of Nyoka v Kasambara HH-88-08 in which the learned Judge stated as follows:
The matrimonial Causes Act [Cap 5:13] (the Matrimonial Causes Act) does not define matrimonial property. The only provision in the Act which deals with this aspect is couched in the negative and outlines property which is excluded from matrimonial property. Section 7 (3) of the Matrimonial Causes Act provides as follows:
‘The power of an appropriate court to make an order in terms of paragraph (1) shall not extend to any assets which are proved to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage-by way of an inheritance in terms of any custom and which, in accordance with such custom, are intended to be held by such spouse personally, or in any manner and which have particular sentimental value to the spouse concerned.’
It seems to me that a proper interpretation of this provision would be that all property which is not specifically excluded is matrimonial property. This would, in my view, include property purchased even after the parties have separated.
The wording of the provision is couched in very wide terms and includes property acquired before and during the marriage. Upon separation of a married couple the marriage in my view has not ended. It only terminates upon an award of a decree of divorce by an appropriate court. The only issue that may be subject to argument would be whether or not the property should be distributed between the parties.”
At divorce (dissolving a registered marriage) where parties cannot agree as to what property each spouse is entitled to, they can approach the Magistrates Court (for registered customary marriages: Chapter 5:07) and the High Court (for registered civil marriages: Chapter 5:11) laying claim to either whole or part of their property.
In determining the claims by the parties, our courts appear to be persuaded by the use of the “contribution principle”, as explained in this article, to ascertain what portion of the property that a claiming party may be entitled to.
Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at firstname.lastname@example.org and WhatsApp 0772 997 889. Ta kunda Gombiro. Takunda is a partner at Chimwamurombe Legal Practice and his email is email@example.com