In
our law, the legal regime governing ownership of immovable property
by spouses, within a subsisting marriage, reinforces rather than
derogates from the principle that ownership of real rights is to be
protected. In simple terms, it provides for marriages out of
community of property in the absence of an ante-nuptual contract
executed by the spouses ...
In
our law, the legal regime governing ownership of immovable property
by spouses, within a subsisting marriage, reinforces rather than
derogates from the principle that ownership of real rights is to be
protected. In simple terms, it provides for marriages out of
community of property in the absence of an ante-nuptual contract
executed by the spouses according to the relevant law. Specifically,
section 2 of the
Married Persons Property Act [Chapter
5:12]
provides as follows:
“1….,.
2.
Community of property excluded from marriages after 1 January 1929,
except where agreements made to the contrary.
(1)
Community of property and of profit and loss and the marital power or
any liabilities or privileges resulting therefrom shall
not attach
to
any marriage solemnized between spouses whose matrimonial domicile is
in Zimbabwe entered into after the 1 January 1929, unless such
spouses shall, by an instrument in writing, signed by each of them
prior to the solemnization of their marriage and in the presence of
two persons, one of whom shall be a magistrate, who shall subscribe
thereto as witnesses, have expressed their wish to be exempt from
this Act.”…,.
The
import of this provision is that a spouse whose name appears, for
instance, in the title
deed
of any immovable property enjoys full ownership rights therein. He or
she can deal with the property in any way he wishes, including
alienating his rights therein or otherwise encumbering such property.
Similarly, if both spouses are registered as joint owners of the
property, each one enjoys full ownership rights over his or her share
in the property.
This
situation is to be contrasted with a regime, for instance, the South
African one, that imposes community of property in marriage. Since
all the property is owned equally by the spouses, neither is at
liberty to deal with any share thereof as he/she wishes without the
consent of the other.
