A post nuptial contract is an agreement entered into between spouses after the solemnisation of their marriage to alter the matrimonial regime. A post nuptial contract is therefore different from an antenuptial contract which is entered into by parties before the solemnisation of a marriage to exempt themselves from the applicable matrimonial regime.
It is submitted that in the strict sense of the term, a post nuptial contract is not legal in Zimbabwe. This is because legislation only provides for antenuptial contracts to change the matrimonial regime. Essentially parties can only change their matrimonial regime through the execution of an antenuptial contract before the solemnisation of their marriage. This is because of the provision of section 2 of the Married Persons Property Act (Chapter 5:12) as read with the Antenuptial Contracts Act (Chapter 5:01). Section 2 of the Married Persons Property 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.
See article on Marriage out of Community of Property
Notwithstanding the above, nothing stops parties from entering into an agreement after their marriage in respect of their assets and such agreement can be enforced like any ordinary agreement. Whether the parties term it a post nuptial agreement or not may not change anything as the focus will be on whether the agreement meets the essentials of a valid contract.
In the case of Kanyekanye v Kanyekanye HH238/2022 the court had occasion to deal with a situation where the parties entered into an agreement on the distribution of their property after marriage and during divorce proceedings. The court held as follows;
“This brings me to the issue of whether or not the post nuptial agreement entered into between the parties is binding or not. The Plaintiff maintains that it is binding while the Defendant said it is not binding.
Section 7(5) of the Matrimonial Causes Act [Chapter 5.13] states:
“In granting a decree of divorce….an appropriate court may, in accordance with a written agreement between the parties, make an order with regard to the matters referred in paragraph (a) and (b) of subsection (1).” (My emphasis).
In the present case there were divorce proceedings case number HC 6917/18 that the Plaintiff instituted and subsequently withdrew. Prior to institution of the said proceedings parties herein had entered into their own agreement on proprietary distribution and signed the agreement on pp 27-31 of the bundle of documents.
At trial of this current matter the Defendant sought to claim that the agreement was entered into when she was sleepy and she had to go to work the following day. The excuse used by the Defendant was an attempt to evade the agreement. This is absurd to say the least as I will demonstrate below. In essence the Defendant confirmed knowledge of the agreement in her testimony. In the same testimony she confirmed that she signed the agreement and endorsed on every page her initials. The Defendant did not lead any evidence to legally excuse herself from the agreement, “she just did not wish to be bound by it”.”
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