Marriage Out Of Community Of Property

According to the Married Persons Property Act (Chapter 5:12) people who marry in Zimbabwe are married out of community of property. The only exception is where the parties prior to the solemnisation of their marriage agree through an instrument in writing (antenuptial contract) that their marriage will be exempt from this legal regime. The Act provides as follows;

2 Community of property excluded from marriages after 1 January 1929, except where agreements made to the contrary

 Community of property and of profit and loss and the marital power or any liabilities or privileges resulting therefrom shall not attach to any marriage solemnized between spouses whose matrimonial domicile is in Zimbabwe entered into after the 1 January,1929, unless such spouses shall, by an instrument in writing, signed by each of them prior to the solemnization of their marriage and in the presence of two persons, one of whom shall be a magistrate, who shall subscribe thereto as witnesses, have expressed their wish to be exempt from this Act.

Out of community of property means that property (movable or immovable) that is acquired by either spouse during the subsistence of the marriage is exclusively his or hers if it is in his or her name. It also means that one spouse is not liable for the debts of another unless the debt has been jointly acquired.

The effect of this matrimonial regime during the subsistence of the marriage was clearly articulated in the case of Muswere v Makanza 2004 (2) ZLR 262 (H) where the court held that:

“A wife cannot stop her husband from selling the matrimonial home or any other immovable property forming the joint estate if it is registered in his sole name even if she contributed directly and indirectly towards the acquisition of that property. Anachronistic as it is, the legal position at present is the right of a wife to the matrimonial estate, as determined by the principles of family law, are inferior to the rights of her husband in the same property as determined by the principles of the law of property.”

To put it in simpler terms, the wife does not legally require the consent of the husband to sell a vehicle registered in her name and neither does the husband. During the subsistence of the marriage nothing stops either spouse from disposing of or encumbering a property solely registered in his or her name. it also follows that the property of one spouse cannot be attached for the debts of the other.

Once divorce proceedings have been initiated the legal position changes and the provisions of the Matrimonial Causes Act (Chapter 5:13) will apply. Generally in terms of this Act both his and her property will be regarded as assets of the spouses subject to distribution (refer to article on division of assets of the spouses)

Before the solemnisation of the marriage parties can exempt themselves from the application of the out of community matrimonial regime by signing an instrument in the presence of two witnesses one of whom should be a magistrate (antenuptial contract). This instrument should be in the form provided and should be registered at the Registrar of Deeds.

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.

Copyright © Marume & Furidzo Legal Practitioners 2020