moved out to live with another family in Zambia, a Harare woman is challenging the constitutionality of the property law.

Mrs Kurai Jessina Kingsley was served with attachment papers of the property to satisfy a judgment in a civil case pitting her estranged husband and his former employer in Zambia Cold Chain.
When the husband was working in Zambia, he clashed with his employer to an extent that he was arrested and civil proceedings were instituted to recover certain outstanding company funds.

When the Zambian firm sought to attach the matrimonial home in Harare, Mrs Kingsley had already filed divorce proceedings against the man.
Cold Chain argued that the title deed to the property was registered under the name of the husband although they were legally married and that the said property belonged to the man.
Faced with such a predicament, Mrs Kingsley has asked the High Court to adjourn the property attachment case and refer it to the Supreme Court for determination on the fairness and constitutionality of the common law position.

The law in Zimbabwe considers the title deed holder as the legal owner of the property and spouses, whose names do not appear on the ownership papers, cannot claim ownership of the pro-perty. Such spouses can only claim title to the property when the partner dies or when they are divorced.
Justice Francis Bere last Friday reserved judgment on whether or not the case should be referred to the Constitutional Court.

Advocates Thabani Mpofu and Choice Damiso appeared for Mrs Kingsley, while Advocate Lewis Uriri represented Cold Chain in the High Court application. According to Adv Mpofu, a wife in Zimbabwe should be able to asset rights to the matrimonial property although her name does not appear on the title deeds.

It was common in Zimbabwe that couples may acquire properties and innocently agree to register them in the names of their husbands.
The said property, according to the lawyers, should remain matrimonial and each spouse should equally be able to asset his or her rights at any stage of the marriage.

According to Mrs Kingsley’s lawyers, the Supreme Court has the power to alter the common law position and make the law respond to social and economic norms. They are seeking revocation of the law to protect proprietary rights of spouses whose names do not appear on the deed of title to the matrimonial homes.

According to the application, the current law on property ownership in marriages contravened section 18 of the Constitution (right to protection of the law) in that it treats “equals unequally”.
It is argued that people must be governed by a law that is relevant to the society unlike philosophies.

The right to a livelihood as enshrined under Section 12 of the Constitution is also being breached in this case as the woman is bound to lose shelter, which is a most basic pre-condition to the enjoyment of the right to livelihood.

Discrimination on gender grounds under Section 23 as well as degrading and inhuman treatment as enshrined under Section 15 are also issues for consideration.
“Because of the registration of the title, it is only applicant’s husband who has proprietary interests in the property and it is only him who can lose it.

“The retention of that position at law is surprising given that the law has taken it as a legal fact that upon death, applicant would be entitled to the matrimonial property as her sole property.
“The position is further surprising to the extent that upon divorce, applicant remains entitled to at least a share in the property,” read part of the submissions.

It was submitted that the current law on matrimonial property was irrational and unjust.
The High Court, according to the lawyers, has in earlier related cases condemned the common law position as unjust, outdated and oppressive.

“Zimbabwe now operates under a constitutional democracy in which even the common law is subject to the constitution. There can be no endeavour, which is more legitimate than asking the Constitutional Court to consider the constitutional implications of a rule that has been certified unjust by the High Court,” read part of the application.

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