PSG’s Hakimi Achraf’s ‘genius’ claims ignite discussion on property rights upon divorce in Zimbabwe.

By Lincoln Majogo.

For avid football fans like myself, the name Hakim Ashraf is a very familiar name. He is one of the famous faces of Morocco, that took the country's national team to the semi-finals of the World Cup in 2022 after defeating Portugal in the quarter-finals of the competition. Recently, social media has been awash with his pictures whilst kissing his mother with captions titled “genius”. This follows false rumors in which his wife allegedly filed for divorce seeking to claim 50% of his property only to be informed by the court that the football star has no properties registered in his name. It was alleged that a significant chunk of his wealth goes to his mother. Although the wife has reportedly denied filing for divorce, this incident has raised an interesting legal dynamic that has resulted in various interpretations regarding how the courts would handle such a case. The assumption is that the footballer was simply using his mother as a scheme to prevent his wife from making claims against his property in the event of divorce. In family law, parties have a duty of care towards each other even after divorce. So faced with a similar scenario, how would Zimbabwean courts likely handle the matter? The article intends to address this issue.

To begin off, in Zimbabwe, all marriages entered into after 1 January 1929 are out of community of property. This entails that property that is owned by each spouse before marriage belongs to that person after marriage. Hence, if X owned a house before marriage, X remains the sole owner of that house after marriage. Similarly, this also entails that X has various rights to the property that includes selling the house, mortgaging the house, and donating the house, without requiring the consent of the other spouse. In contrast, marriage in a community of property entails that property that was individually owned by each spouse before marriage becomes part of the couple's joint estate after marriage. For example, in terms of the Matrimonial Property Act 1984 of South Africa, parties in a marriage in a community of property are required to obtain the consent of their co-spouse before exercising any rights on the property(eg selling, mortgaging, bequeathing in a will).

The principle of "community of property" is only applied absolutely during the duration of the marriage. When either party files for divorce, it becomes a different matter altogether. The Court is guided by the Matrimonial Causes Act in making an order of property distribution. In terms of this Act, the court considers "assets" of the parties or rather assets that are owned by the parties at the time of the divorce. This includes property acquired individually either before marriage or during the subsistence of the marriage-See Gonye v Gonye SC 68/06. The exception lies in property acquired through inheritence, or property with sentimental value. In this case, what makes the case interesting is that the property is registered in the name of the footballer's mother which means that on face value the property doesn't qualify as "assets of the parties" since the mother is not a party to the marriage. A strict reading of the Matrimonial Causes Act would therefore mean that the court cannot distribute the property. However, there is an exception in which the wife would still be able to benefit from that property. This is where there is evidence that the footballer is simply registering his properties in his mother's name as a way of evading his obligations to his wife. The Court can invoke the principle of legitimate ownership to distribute that property even if it is registered in the mother's name.

In Chenga v Chikadaya SC 7/13, the Supreme Court dealt with a case in which X bought a house and registered it in his brother's name to circumvent the provisions of the law. At that time, the City Council's policy was that it was not allowed to own more than 2 properties in the same municipal area. X and his brother agreed that, in due course, the brother would transfer the property to X's children. Sometime later, X then requested his brother to transfer the property to his son. The brother refused and claimed that since his name was registered on the property, he was the owner and not X. The issue, therefore, was who is the real owner of the property. X, the person that bought the property and registered it in his brother's name to circumvent the provisions of the law, or the brother, whose name appeared on the title deeds. The Court held that although the property had been registered in the brother's name, the real and legitimate owner was X. On that score, the property was awarded to X. 

Based on the reasoning above, it is clear that the court can look beyond the registered owner of the property to find the legitimate owner of the property. In this case, if the footballer was registering his properties in his mother's name as a way to evade his post-divorce obligations of maintaining the wife, the court would be compelled to disregard the registration and declare him as the legitimate owner. In determining whether the intention was to evade obligations, the court will consider various circumstances including the time of the marriage together with when the properties were donated to the mother. If the footballer was donating the property to his mother before he got married to his current wife, then the court is more likely to hold that his intentions were borne out of his love and appreciation for his mother. In any event, that arrangement is perfectly legal. In that case, the court cannot then hold that his intention was to evade his post-divorce obligations to maintain his wife since he was not even married at the time. If however, this was done during marriage behind the wife's back, then the court may presume that the intention was to hide away assets to prevent the wife from making claims on the property. 

In the event that the court has sight of evidence showing that the footballer's intention was to evade his obligations, then the court can declare him as the legitimate owner. This would bring the property within the scope of the "assets of the parties" as contemplated by section 7 of the Matrimonial Causes Act. This applies with equal force in circumstances where one party registers a property in a company that they wholly control for the sole purpose of evading their obligations-See Gonye v Gonye supra. The Court can pierce the corporate veil and declare that party as the owner of the property which brings the property within the scope of distribution. The intention of the court is to try and place the parties in a position that they would have been in had the marriage continued to exist. 

It is therefore likely, that if this Hakim situation has occurred in Zimbabwe(and there was evidence that he acquired property during marriage and donated it to his mother as a way to evade his obligations to his wife upon divorce but behind the scenes, he is the 'real owner' of the properties), the courts would have used their discretion to take all necessary steps to ensure that the wife still gets something off the ‘mother’s estate’ if the courts considered it fair and just for both parties. In other words, putting the property in someone’s name does not stop the court from distributing that property if equity and justice demand it.

Lincoln Majogo is a registered legal practitioner, notary public, and conveyancer who is practicing law in Zimbabwe. 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.