Dividing the Matrimonial Home: What the Law Actually Says

The matrimonial home holds the memories, the children and most of a family's wealth, so it is where divorce becomes hardest. It is also where the myths run deepest. The law is actually clearer than people fear, and in many cases fairer than they expect.

It is not simply about whose name is on the title

Under section 7 of the Matrimonial Causes Act, when a registered marriage ends a court divides the assets of the spouses. The title deed is a starting point, not the final word. A home registered in one spouse's name alone can still be shared. See Your Deed Is Real, But Is It Registered? for what the deed does and does not settle.

How a court approaches it

The leading guidance comes from the Supreme Court in Takafuma v Takafuma.

A court does not simply lump all the property together and hand it out as fairly as it can. It first sorts the property into three groups, his, hers and theirs, and then shares out the joint, matrimonial property using the factors the law sets down. Approach from Takafuma v Takafuma 1994 (2) ZLR 103 (S)

This matters because it means there is no automatic fifty fifty split, and no rule that the higher earner simply keeps what they paid for. It is a careful, case by case exercise.

Contribution counts, including the unpaid kind

The law expressly recognises that not all contribution is financial. Looking after the home and caring for the family is a contribution the court must weigh. In Usayi v Usayi, the Supreme Court upheld a wife's award of half the value of the home, recognising the years she had given to raising the family. A spouse who never drew a salary is not empty handed.

What guides the court

1. Earnings and assets. What each person earns and owns now, and is likely to in future.
2. Needs and responsibilities. What each person must provide for, including the children.
3. Standard of living. The life the family had, and the children's schooling.
4. Age, health and circumstances. The position each spouse is left in.
5. Contribution. What each gave, in money and in unpaid work at home.
6. Benefits that may be lost. Such as a pension a spouse gives up on divorce.

The home, specifically

A court can order the home kept by one spouse, transferred from one to the other, or sold with the proceeds shared. It often weighs where the children will live and whether a clean break serves everyone better than continued joint ownership. These are exactly the questions a calmer, negotiated approach is best at answering. See Keeping the House for the Children.

Two important limits

First, some property is left out of the pool altogether: assets that were inherited, held in terms of custom, or of particular sentimental value. Second, this framework applies to registered marriages and to civil partnerships. An unregistered customary union falls outside it, which is why registration matters so much. See Marriage Types and Property at Divorce and Lobola Paid, House Built, No Certificate.