The Constitution of Zimbabwe, which contains a substantive Bill of Rights, has been in force for almost six years. Owing to the progressive nature of these rights, the need to align all laws with the Constitution remains imminent and necessary.
Currently there is an opportunity to align the country's marriage laws so that they follow the true intention of the Constitution which is to promote, protect and fulfil human rights.
The draft Marriage Bill is another latest development which has in no doubt created a lot of buzz among women rights activists and society at large. The judiciary in a number of cases has over the years called for the review of the law that governs matrimonial property rights with a view to protect each spouse's rights. Is this not the right opportunity to act?
The legislature is not restricted in its law making powers and processes. Given the time it has taken to align our laws with the Constitution, a holistic approach is needed. The inequalities resulting from the current laws that govern matrimonial property rights have been written a hundred times. What is needed is action! More often than not, women have had to bear the brunt of the gaps and inequalities in law where their male counterparts would dispose of immovable matrimonial property such as houses during the subsistence of the marriage. This has even happened in cases of joint ownership hence the need to close the gap now. The judicial call must be heeded as several cases in the courts highlight the prevailing gaps for instance;
As far back as 2005, Justice Makarau in the case of Muswere v Makanza HH/16/2005 where a husband in whose name a house was registered sold the house without the consent of the wife, forcefully stated as follows;
" . . . while accepting the current position at law, I am of the firm view that the principle of family law that this Court is enjoined to apply to restrict the rights of a wife to the realm of personal rights against her husband are anachronistic and have outlived their raison d'etre"
Equally in a High court case Madzara vs Stanbic Bank Zimbabwe limited and 4 others) where a husband had mortgaged a matrimonial house without the consent of the wife, the Court re-emphasised the need for law reform in the area of property rights and matrimonial property rights. Justice Tsanga in the present case held that our law must clearly define and prevent the alienation of matrimonial property through sale, mortgage, pledge or debt. Matters must not be left to chance and conditions to disposal of such property must be clearly provided for.
As indicated above, this gap in the law also extends even where there is joint ownership of the property. This year, the Supreme Court was once again called to action in the matter of Judith Ishemunyoro v Antony Ishemunyoro and others SC14/19. In the present case, the husband and wife had both names registered on the title deed. A creditor to the husband sought to attach the 50 percent share of the husband in the property.
This meant the sale of the property to recover the debt while the wife got a half share of the purchase price. The wife went to court to challenge the sale on the basis that she had personally acquired the property from her employer and only included the husband's name on social grounds. She lost the case. The Court took a position that the judiciary cannot make the law and called for the need for legislative amendments to ensure that the constitutional rights of spouses during the subsistence of the marriage are protected.
The million dollar question therefore would be whether this is not the rightful opportunity to include provisions of protection of matrimonial property rights in the Marriage Bill. At law this is allowed. As a country, we must adopt best international practice.
In the Ishemunyoro case, the Court argued that it would be desirable to adopt the Canadian approach, which states that disposal of matrimonial property requires the consent of both parties.
It would also protect the integrity of a matrimonial home and safeguard the family's right to shelter. In this regard, the Ministry of Justice, Legal and Parliamentary Affairs must consider a provision in the current Marriage Bill which prohibits the disposal, pledge, alienation or mortgaging of a matrimonial home without the consent of the other spouse.
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