Joint Ownership of Matrimonial Property in Zimbabwe; Insights from Ishemunyoro v Ishemunyoro & Ors 2019(1) ZLR 273(S).

 Introduction

Joint ownership of matrimonial property has numerous implications in law. For instance, a couple may register matrimonial property as co-owners, and later on, one party decides to alienate their share forcing the rest of the family to cohabit with strangers in the same house. What does the law say regarding such circumstances where one party acts recklessly in disposing of their share in a matrimonial property without the consent of the other to the detriment of the family? This piece unpacks the law on the subject matter beforehand.

Brief facts of the matter

In the Ishemunyoro case, the Appellant, a woman who worked for the government was offered a rent-to-buy option with respect to certain immovable property in Sinoia Township. For convenience, we shall refer to this as the property. She would pay the purchase price through monthly salary deductions from her employer ie the Government. The property was then registered in the names of the Appellant and her husband. The Appellant alleged that societal and cultural pressures had forced her to register the property as a co-owner with her husband. Without the consent of the Appellant, the husband bound himself as surety to a loan agreement which resulted in the principal defaulting on its obligations. The creditor attached 50% of the husband’s share in the property in question. The Appellant challenged the attachment on the basis that the husband had acted recklessly with the matrimonial property without her consent thus exposing the property to the judicial attachment. She sought the law to be expanded to recognize that property jointly owned cannot be exposed as was in this case without the consent of the co-owner. The courts ruled against her.

Implications of the case

Assuming that parties register immovable property as co-owners with each party owning 50% of the house, either party has an exclusive right to do as they please with their 50% share.  It does not matter even if the property is also the couple’s only matrimonial home. This entails that each co-owner can amongst other things;

·         Sell their 50% share to any person without the consent of their spouse, or

·         Pass their 50% share as security for a loan without the consent of their other spouse, or

·         Donate their 50% share to third parties other than their relatives without the consent of any of their relatives, or

·         Bequeath their 50% share in a will to a third party other than the wife or children of that party without seeking the consent of anyone. The list goes on and on.

In short, one can do as they please with their share in a property (including a matrimonial home) even if it exposes the family to risks of cohabitating with a stranger (the new owner of the 50% share). The immediate legal question as earlier-mentioned is whether the law should intervene and create an exception in cases of joint ownership involving the matrimonial property as was in the Ishemunyoro case. Well, until such a time when the law is amended, the implications of joint ownership have been set out loud and clear.

 

Author

Lincoln Majogo is a registered legal practitioner, conveyancer, and notary public. He works at Mhishi Nkomo Legal Practice where he specializes more in corporate transactions, civil law, debt collection, and commercial law. He writes in his personal capacity.

Disclaimer

The contents and suggestions contained in this article are for information purposes only and are not for the purpose of providing legal advice. If need be, you should contact the author to obtain advice with respect to any particular issue or problem aforementioned herein. Contact details are; Cell: +263 718832210 or LincMajogo1@gmail.com.