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Published online by Cambridge University Press: 28 July 2009
Most countries of the world have at one time or another been confronted with questions of what principles or rules should guide the courts in readjusting the property rights of spouses at the dissolution of their marriage. Virtually all civilised countries have accepted marriage as an equal partnership of two legally equal individuals to which each one of them contributes in one way or another. Most policy makers agree that the partners contribute to the marriage through their division of labour and that these contributions although not equal in absolute terms are nonetheless of equal relative value to the welfare of the family.
This recognition of the equal worth and equal importance of the two spouses to a marriage relationship has had profound effects on the matrimonial property regimes of numerous countries which have had to tackle the problem of the construction of a fair and equitable legal formula for the reallocation of matrimonial property rights at the dissolution of marriage. The fundamental problem has been whether a fair and equitable system is achieved by means of fixed rules of apportionment or through flexible discretionary judicial powers exercisable at the discretion of courts, in the light of the individual circumstances of each case.
1 This is due to the effects combined of the choice of law rules provided in s. 3 of the Customary law and Primary Courts Act, No 6 of 1981, s. 13 of African Marriages Act, s. 69 of the Administration of Estates Act, Chapter 301 and s. 6 A of the Customary Law and Primary Courts Act. See also Jenah v. Nyemba SC 49/86 where Gubbay, J. A., stated that: “ … regardless of whether Africans enter into a marriage in terms of the Marriage Act, African law and custom continues to apply to their proprietary rights. It is not open to them to elect to have the property consequences of their marriage governed by the general law” at p. 3.Google Scholar
2 Per Gubbay, J. A., in jenah v. Nyemba, (supra)Google Scholar.
3 This property is made up of the cow and all its offspring a mother of a daughter acquires as her share of the lobolo (brideprice) cattle.
4 This is property a woman acquires through the use of specialised skills such as a midwifery, pottery and knitting. See generally Holleman, , Shona Customary Law, Capetown, 1952, at pp. 351–353Google Scholar and Ncube, , Family Law in Zimbabwe, H.L.P.C, Harare, 1989 at pp. 141–142Google Scholar.
5 The definitive effects of the Act are discussed infra.
6 See s. 2 of the Married Persons Property Act, Chapter 38.
7 Under this property regime the property of the spouses however and whenever acquired forms a joint estate administered by the husband by virtue of his common law marital power. At the dissolution of the marriage the property is divided equally between the spouses and/or their heirs. The drawback of this marriage is the husband's marital power which renders the wife a quasi-minor and removes her from participation in the administration of the joint estate.
8 Under this regime the property of the spouses is unaffected by the marriage. Each of them retains total ownership and control of his or her separate estate and at the dissolution each of them must retain their own share.
9 The greatest injustice of separation of property is its failure to reward a spouse whose contribution to the family has been through being a homemaker or who has used her resources for the day to day subsistence requirements of the family and thereby deprived himself/herself of the opportunity of acquiring durable property.
10 These powers of the courts extend to both customary law and general law marriages as a result of the definition of the term marriage in s. 2 of the Act, which term is defined as including a customary marriage contracted in terms of the African Marriages Act, Chapter 238. Unregistered customary law unions are not included in the definition and thus the courts would have no power to invoke the provisions of s. 7 to re-allocate the property of parties associated in a customary law union. In respect of the possible relationship between property division and maintenance orders see the English case of Wachtel v. Wachtel [1973] All E.R. 829Google Scholar. For a critique of that approach and a suggested more equitable approach see Ncube, , Comparative Matrimonial Property Systems. The Search for an Equitable System of Re-Allocation of Matrimonial Property, Oslo, 1989, at pp. 60–61Google Scholar.
11 Section 7(3).
12 See, for example, Muchada v. Muchada HC-H-346–86 and Mujati v. Mujati HC-H-505–87 at pp. 3–4Google Scholar.
13 See, for example, Chiromo v. Katsidzira 1981 Z.L.R. 481Google Scholar where it was held that a wife who had made direct financial contributions to the improvement of the matrimonial home originally acquired by the husband, and who also had shouldered the entire responsibility of maintaining the family had no claim to a share of the matrimonial home.
14 Gray, K., Reallocation of Property on Divorce, London, 1976, at p. 71Google Scholar.
15 It could, in fact, be argued that on the facts of this case the wife should have been awarded more than a half share.
16 See West v. West [1977] 2 W.L.R. 933Google Scholar, Cuzner v. Underdown [1974] 1 W.L.R. 1531Google Scholar, Harriett v. Harriett [1974] 1 W.L.R. 219Google Scholar.
17 See s. 7(2).
18 For a fuller discussion of these exclusion see Ncube, , Family Law in Zimbabwe, at pp. 149–151Google Scholar.
19 For a detailed discussion of how English courts have grappled with this difficulty see Ncube, ibid., at pp. 150–152.
20 For a discussion of how the New Zealand judiciary frustrated such legislative intentions see Gray, op. cit.
21 See Chihowa v. Mangwende SC84/87 where the Supreme Court ruled that the heir of a deceased African male is his eldest child regardless of sex. The Supreme Court came to this ruling on the basis that prior to the Legal Age of Majority Act, No 15 of 1982, African women were excluded from the customary law order of inheritance because of their then perpetual minority status and now that they become majors, like do men, on attaining the age of 18 years it follows that their exclusion from the inheritance line falls away.Google Scholar
22 See, for example, Masango v. Masango S.C. 66/86 and Chihowa v. Mangwende (supra) at pp. 8–9Google Scholar.
23 See s. 7(3) of the Deceased Persons Family Maintenance Act No. 39 of 1978Google Scholar as amended by the Deceased Persons Family Maintenance Amendment Act, No. 21 of 1987Google Scholar.
24 Only Non-Africans can be governed by general law in this regard.
25 See s. 3(b) and (c) of the Deceased Estate Succession Act, Chapter 302.
26 See s. 3(a) of the Deceased Estate Succession Act. For a fuller discussion of Zimbabwe&s laws of succession to matrimonial property see Ncube, , Family Law in Zimbabwe, Chapter 11Google Scholar.
