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Lungelo Ndhlovu
During her entire married life, Mrs Emmaculata Mhora (65) had never worked a formal job nor earned a salary to contribute towards immovable property in the union. It was her husband Mr Govati Mhora who worked as a police officer and made the contribution.

In 2010, Mrs Mhora approached the High Court seeking a judgement of divorce, maintenance and distribution of property and the High Court ruled in her favour, a resolve which her husband sought to challenge at the Supreme Court.

Advocate Choice Damiso, a lawyer who represented Mrs Mhora at the Supreme Court under the instruction of the Zimbabwe Women Lawyers Association, said the couple were married in 1970 in terms of an unregistered customary law union.

“The couple’s divorce case was quite straight forward at the High Court. What then became tricky was the question of sharing of property which was then decided at the Supreme Court,” she explained.

On June 29, the Supreme Court made a historic ruling that marriage partners are entitled to an equal share of the movable and immovable properties should the union dissolve regardless of their contributions towards the purchase of property.

Adv Damiso, told the Chronicle that the ruling was relevant to many married women in Zimbabwe because of the division of labour on the basis of gender.

“In a lot of homes, you will find that the husband goes to work while the wife stays at home and is responsible for the domestic work such as taking care of the children, nurturing the family and attending social events on behalf of the family,” she said.

Adv Damiso said the consequence of this division of labour is that the man will have a salary for his work but the woman will not have a salary for her domestic work in the home despite the fact that both are working.

“As a starting point, the division of property upon divorce in this country is done in terms of the Matrimonial Causes Act. The system that governs property rights in marriage in Zimbabwe, is known as out of community property,” she said.

The Matrimonial Causes Act first of all provides that the division of property is a matter of exercise of judiciary discretion, according to Adv Damiso.

“What it means is that, it is basically a value judgement where the court is supposed to look at certain factors and then make a decision which the judge feels will reach a conclusion that is just and equitable,” she said.

At the trial, the plaintiff (Mrs Emmaculata Mhora) gave evidence as follows: That she is aged 65 years. She and the defendant started staying together in 1970 and in 1971, the union was solemnised in terms of the then African Marriages Act [Chapter 105] (now the Customary Marriages Act (Chapter 5:07).

On May 27, 2005, their marriage was “upgraded” to (Chapter 5:11). The defendant was at the time employed as a police officer and they started off staying in Goromonzi before moving to Ruware Park in Marondera after the defendant was promoted.

They then moved to Cranborne Park in Harare and later on to 114 Lomagundi Road in Harare. The plaintiff was under the belief that they were renting the house in Marondera. For the Cranborne house, the defendant got a grant to buy the house which he subsequently sold to buy the Lomagundi Road property.

In 1982, the defendant “married” another wife in terms of (Chapter 5:11) even though their customary law marriage was still in subsistence. The plaintiff, defendant and this “wife” stayed together in Cranborne before moving together to the Lomagundi Road house.

The plaintiff never formally worked in her life although at some stage she sold chair backs and gave the defendant some of the money. She did not contribute financially to the acquisition of the immovable properties. The plaintiff and the defendant had four children together. The defendant and his other “wife” had three children.

In 2019, over 2 600 couples in Zimbabwe filed for divorce, according to statistics obtained from the High Court’s Family Law division. The Bulawayo High Court handled 820 divorce cases in 2018.

Mrs Abigail Matsvayi, director of the Zimbabwe Lawyers Association said the recent Supreme Court judgement confirms the value of domestic and care work which was in the past sidelined but is equally important.

“Women, many times perform these domestic roles within the home but when separating or divorcing, these roles are not recognised. The Supreme Court judgement has therefore confirmed the importance of this work by awarding an equal share of the immovable property in the case in question,” she said.

Pastor Margarete Chirwa from the Presbyterian Church noted that women often suffer economic violence in homes which makes it hard for them to acquire property.

Mr James Tsabora, a Constitutional law expert with the Centre for Applied Legal Research, said the judiciary has embraced the equality and non-discrimination concept in the Constitution and has made huge strides to give effect to that concept on issues of succession law, administration of estates and matrimonial property division.

“The Constitution requires that approach and not only the hesitant application of outdated principles that predate the Constitution,” he said.

Mr Melusi Matshiya, Secretary for Women Affairs, Community, Small and Medium Enterprises Development, said the Supreme Court verdict is a welcome development and is in line with the ministry’s stance that it is fallacious to suggest that women do not contribute to the acquisition of immovable property.

Weighing in on the matter, Ms Melissa Ndlovu, programmes officer at Emthonjeni Women’s Forum, said the Supreme Court ruling which gives women a right to 50 percent share of immovable property on divorce was a very welcome development as it will significantly change the lives of many women.