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Thursday, September 23, 2021
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Nature of the Case

Feline Mhangami and Abel Mhangami had two disputed properties in their divorce.  The first property was a home Abel purchased for his mother, owned in his name.  The second property was the couple’s matrimonial home where they raised their children, owned in both of their names. The court found that Feline was not entitled to any interest in the first property, but she was entitled to 50% of the share of their matrimonial home.

Summary

Feline Mhangami (plaintiff) and Abel Mhangami (defendant) married in 1989, and together they raised four children.  In 2021, they divorced.  During the divorce process, the couple disputed the division of two of their asset properties.  The first property at issue was a home in Budiriro that the defendant had purchased in 1997 for the primary purpose of housing his aging mother (who passed away in 2019).  The second property at issue was the shared matrimonial home of the plaintiff and defendant in Marlborough, which they had purchased and registered in both of their names in 1995.

In Zimbabwe, division of marital property during divorce is governed by international, constitutional, and statutory law.  Under Section 46 of its Constitution, courts in Zimbabwe must consider international law in making case law decisions.  In the opinion, the court discussed that Zimbabwe is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Universal Declaration of Human Rights, the Covenant of Civil and Political Rights, and the African Charter on Human Rights. The court stated that all of these instruments include provisions aimed at equality between men and women in family and marriage, including in the dissolution of marriage.

The Constitution of Zimbabwe also addresses marriage.  Section 26 states that there will be “equality of rights and obligations of spouses during marriage and at its dissolution,” and Section 56 establishes equality and non-discrimination (based on sex and gender, among other categories) as fundamental rights. The Matrimonial Causes Act of Zimbabwe, in section 7, instructs courts to consider the following factors in dividing assets in divorce cases: “income earning capacity of the spouses, financial needs, obligations, and responsibilities; standard of living; age; physical and mental condition of each spouse; direct and indirect contributions; value of pensions and gratitudes; and the duration of the marriage.”  It also instructs courts to consider whether any asset has had “particular sentimental value” to either of the spouses. Under these guiding doctrines, the court in the case was required to consider which divisional principles should govern each of the Mhangamis’ shared properties in their divorce.

Regarding the Budiriro property, the court found that the home should not be divided between the plaintiff and the defendant in the divorce, but that it should be allocated solely to the defendant.  The court reasoned that because the home was purchased by the defendant for the purpose of housing his mother until her death, it was not an asset that the parties had benefitted from during the marriage.  The defendant had acquired the property on his own, and his name alone was on the deed.  The plaintiff had never lived in the home.  For these reasons, the court found that under Section 7(3) of the Matrimonial Causes Act, the defendant had 100% claim to the property because it held a “particular sentimental value” which outweighed other factors.

Addressing the marital home of the parties in Marlborough, the court found that the property should be sold, and that the plaintiff was entitled to a 50% share of the property.  In the briefings, the defendant had argued that because his work generated more shared funds for the family during the marriage than the plaintiff’s work, he should be entitled to a larger share of the property. However, the court dismissed this argument under prior case law interpreting the Matrimonial Causes Act, finding that “[w]omen’s activities in family life may be different from those of men but they are just as equally critical for the survival of society.” The court reasoned that because the home was the shared matrimonial home of the parties in which they had raised their four children, and because the home was registered in the names of both parties, its proceeds were to be split evenly between the parties under the Matrimonial Causes Act.

Enforcement of the Decision and Outcomes

In May 2022, the Marriages Act Chapter 5:15 was passed, legally equating customary law marriages and civil partnerships to civil law marriages. It is common in Zimbabwe for couples to live together and start families without legally registering their union; however, prior to the enactment of Chapter 5:15, this practice had serious implications. Only those in recognized civil marriages had the ability to inherit and share property, putting women at particular risk for destitution if their marriage ended. Now, under Chapter 5:15, those part of a customary law marriage and civil partnership have the right to divide and inherit property should their relationship terminate.

Significance of the Case

The judgment issued in Mhangami signifies substantial progress in recognizing domestic activities as valuable contributions to the home. Women are often responsible for housekeeping and child-rearing tasks, meaning they have less availability to work outside the home. While women who primarily stay at home may not earn as much as their partners, their contributions to the family are no less important. By finding the wife entitled to an equitable share of the marital home based on her domestic contributions, the court not only set a progressive new precedent for dividing marital assets but took a step in furthering gender equality as well.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.