The Ante nuptial contract is at the heart of modern marriage systems. Known also as the Pre nup, this agreement is sui generis (unique) primarily because of the consequences it enforces and the parties to which it strictly applies to. The contract particularly attracts wide interest in other legal systems such as (America, Australia, South Africa) and moreso when one of the parties to the impending marriage is of a wealthy disposition. This is the case because the common version of Ante nuptial contracts intends to separate the estates of the parties to the marriage. This means that each party bears the profit or loss on their estates assets individually and whilst the other party may thrive in their estate, the other may dismally incur loss and the marriage will still persist. As stated by Chitakunye J, referring to the Pre nup excluding community of property in the case of Roche v Middleton & Anor HH-198-16 at page 7:
"At common law, under this form of ante nuptial contract, the general capacity and property rights of the parties remain unaffected by the marriage. They retain their separate estates. They are not liable for each other's debts, with the exception of debts contracted for household necessities."
More importantly, the common version of the ante nuptial contract seeks to control the assets that each party will get in the event of divorce. It is a very interesting set up that has become very common the world over in legal systems where it is applied. On the other hand it is not followed in other legal systems which have found themselves using a different 'version' of the contract. Zimbabwe is one such country. It operates the inverse of the most common form of ante nuptial contracts. This paper seeks to identify the nature of this ante nuptial contract, the requirements to validate this ante nuptial contract, the effect of the ante nuptial contract that exists in Zimbabwe and whether the contract is popular within the legal system in Zimbabwe. Furthermore, the paper seeks to identify whether the prevailing legal set up makes this contract sensible to adopt particularly in respect of the criteria for the distribution of property at divorce.
The Ante Nuptial contract in Zimbabwe.
The two statutes that govern the property consequences of parties to a marriage solemnized in terms of the laws of Zimbabwe are:
- The Matrimonial Causes Act [Chapter 5:13]
- Married Persons Property Act [Chapter 5:12]
The Married Persons Property Act identifies the property regime that is to apply to all marriages that are solemnized in Zimbabwe. For the avoidance of doubt, this refers to the civil marriage in terms of the Marriage Act [Chapter 5:11] and the customary marriage in terms of the Customary Marriages Act [Chapter 5:07]. The Unregistered Customary Law union does not receive recognition in terms of this law. A separate criteria is invoked to ascertain the property consequences of such a union. That criteria will however not be discussed herein.
In terms of the Married Persons Property Act, all marriages in Zimbabwe are out of community of property. This means that the assets of the parties to a solemnized marriage in Zimbabwe have their estates treated individually. To put it as casually as possible, its one man for himself. The import of this is that, an ante nuptial contract in Zimbabwe is aimed at parties to an impending marriage agreeing that they want to merge their assets acquired prior to contracting the marriage, with such a merger which applying in periods of profit/loss making and will subsist for the entire duration of the marriage.
Requirements for a valid Ante Nuptial contract
in terms of section 2 of the Married Persons Property Act there are certain requirements that must be met for an Ante nuptial contract to be valid in Zimbabwe. These requirements are:
- The contract only applies to marriages after 1st January 1929.
- The matrimonial domicile must be Zimbabwe (this means the intention of the parties to the marriage must be to consummate their marriage relationship within the borders of Zimbabwe)
- The Contract must be in writing.
- Both parties to the marriage must execute(sign) the instrument (document) which embodies the contract.
- The Ante Nuptial Contract is only valid if signed before the solemnization of the relevant marriage.
- The contract must be executed before two persons as witnesses. One of those persons must be a magistrate.
- The document embodying the contract must follow as closely as possible the format set out in the schedule to the Married Person Property Act.
- The document must follow closely the applicable regulations in Part I of the Deeds Registries Regulations, 1977
- The document must be registered with the Registrar of Deeds within 28 days after its execution, that is its signing. The document shall not be valid unless Registered.
The Married Persons Property Act is not clear on whether a notary public must prepare the document but it would appear safer to engage a notary public in the preparation of this document.
The Out of community of property regime in Zimbabwe
As already stated above, all marriages in Zimbabwe are out of community of property. This would ordinarily be construed to mean that at divorce each party will go with those assets they worked for and only property jointly purchased during the subsistence of the marriage will be available for distribution. Having said that, there still remains a very important consideration in discussing the property consequences of parties to a marriage at Divorce. This is where the Matrimonial Causes Act [Chapter 5:13] applies. Section 7 of the Act provides for the power of an appropriate court to make decisions that govern the distribution, division or apportionment of the assets of the spouses. Section 7 (4) actually states that:
"....and in so doing, the court shall endeavor as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the parties"
The section seems to fly in the face of the Married Person Property Act which clearly makes all marriages solemnized in Zimbabwe out of community of property. The property consequences of parties at divorce are now governed by equity and not the out of community principle. It appears the application of the separate estates principle is only for the subsistence of the marriage. If you therefore want to enjoy autonomy of your assets you have two choices, either you never get married or you never get divorced.
The Contribution Principle
At divorce where parties contest what assets the other party is entitled to, the courts use the Contribution Principle to ascertain what the other party may be entitled to. This principle is derived from section 7 of the Matrimonial Causes Act. It gives the Magistrate court and the High Court Jurisdiction to take into account ALL property of the parties and distribute such property assessing each property individually and seeing the extent of contribution to the acquisition of such property. This principle comes out well from a passage from the Judgment of the case of Makani v Makani HH-74-10 by Guvava J (as she then was) as follows:
"It seems to me that a proper interpretation of this provision allows a court, in making an award, to take into account all the property acquired by the parties whether before or during the marriage provided that it does not fall in the exceptions outlined in the section. I take this view because s 7 (4) of the Matrimonial Causes Act does not just look at the question of contributions when a court is called upon to distribute property upon divorce. The court is enjoined to take into account all the factors which are set out in subsection 4 and then make an equitable distribution. Clearly it was the intention of the legislature to include all the property owned by the parties. The whole thrust of s 7 of the Matrimonial Causes Act is to place the parties as far as is reasonable and practical in the position they would have been had the marriage relationship continued between them. A property may only be excluded from consideration if it was inherited, acquired in terms of custom or it is of sentimental value to a party. The plaintiff has not sought to rely on any of these exceptions. His only argument was that he acquired the property prior to his marriage to the defendant. That in itself is not in my view sufficient and all property proved to belong to the plaintiff would fall for distribution in terms of s 7."
As of today this is what the courts have said of the contribution principle in Zimbabwe in the case of Ncube v Maglazi HB 77-11:
"It is now trite law that a spouse's contribution should not only be confined to tangibles, but intangibles as well. It is now settled law in our jurisdiction that our courts will not hesitate to lean in favour of women on the principle of unjust enrichment, all in the spirit of law development and justice. I dealt with this principle extensively in Ntini v Masuku 2003 (1) ZLR 638(H), see also Mtuda v Ndudzo 2000(1) ZLR 710(H); Mashingaidze v Mashingaidze 1995 (1) ZLR and Chapeyama v Matende and another 1999(1) ZLR 534(H)."
The contribution theory will only be excluded in relation to assets of sentimental value, assets acquired by inheritance or acquired in terms of custom. Whether or not the assets where acquired before the marriage is not relevant. Such assets will be available for distribution. Even those assets that are acquired after separation of parties but before divorce appear to be viewed as matrimonial property and will be available for distribution. Authority on this aspect can be obtained from Justice Guvava's sentiments in the case of Nyoka v Kasambara HH-88-08 in which the learned Judge stated as follows:
"The matrimonial Causes Act [Cap 5:13] (the Matrimonial Causes Act) does not define matrimonial property. The only provision in the Act which deals with this aspect is couched in the negative and outlines property which is excluded from matrimonial property. Section 7 (3) of the Matrimonial Causes Act provides as follows:
'The power of an appropriate court to make an order in terms of paragraph (1) shall not extend to any assets which are proved to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage-
by way of an inheritance
in terms of any custom and which, in accordance with such custom, are intended to be held by such spouse personally, or
in any manner and which have particular sentimental value to the spouse concerned.'
It seems to me that a proper interpretation of this provision would be that all property which is not specifically excluded is matrimonial property. This would, in my view, include property purchased even after the parties have separated. The wording of the provision is couched in very wide terms and includes property acquired before and during the marriage. Upon separation of a married couple the marriage in my view has not ended. It only terminates upon an award of a decree of divorce by an appropriate court. The only issue that may be subject to argument would be whether or not the property should be distributed between the parties.
In as much as individual parties may have wanted the out of community regime to extend to divorce, it unfortunately does not. This principle will only apply during the subsistence of the marriage. At divorce, the Applicable law ceases to be the Married Persons Property Act but rather becomes the Matrimonial Causes Act.
Does the Ante Nuptial contract vitiate the contribution Principle?
A very important question arises in respect of the effect of the Ante Nuptial contract in Zimbabwe at divorce. Since the contract in Zimbabwe merges the two estates together, does the contribution principle apply in the event of divorce? Section 7(5) of the Matrimonial Causes Act, states that:
"In granting a decree of divorce, judicial separation or nullity of marriage an appropriate court may, in accordance with a written agreement between the parties, make an order with regard to the matters referred to in paragraphs(a) and (b) of subsection (1)"
This section appears to acknowledge a written agreement between the parties for the purposes of divorce or judicial separation can apply in respect of the division or apportionment of property between the parties. It is submitted by one school of thought that the effect of the ante nuptial contract is to award each party an automatic half share of the joint estate. This appears to be the position of the law as provided for by the aforementioned provision.
The Ante nuptial contract clearly joins the estates of the parties to become merged. It appears to apply during the subsistence of the marriage as well as at divorce where the parties will have an automatic half share each. It is however not popular in the country and very few people have registered this type of contract. The out of community regime will apply in Zimbabwe only in as far as the marriage subsists. The Married Persons Property Act will only apply for the duration of the marriage. This is where the estates of the parties to a marriage are individual and profit and loss on their assets is enjoyed or endured individually. Upon Divorce, we shift the focus to the Matrimonial Causes Act for direction and guidance. All assets of the parties regardless of when and how they were acquired will become part of the distribution. The principle to be applied will be that of the nature and extent of contribution of each parties to a particular property. The contribution may be tangible or intangible as already stated. far as
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