A Feminist Approach to Property Sharing: Why Zimbabwean women should read the Mhora Judgement.

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Mhaka Tinatswe

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In 1970, Emmaculate Mhora, a woman now aged 65 moved in with Govati Mhora. In 1971 they were customarily married under the Customary Marriages Act 5:07 (then known as the African Marriages Act). In 1982 Govati Mhora married another woman, who moved in with the couple and their children. Somewhere along the way, Govati had two extramarital affairs that resulted in two other children and by the time his marriage ended with Emmaculate she was taking care of their four children, his three with his second wife and the two from his affairs. During their marriage, Emmaculate did not work. She dedicated her life to taking care of their children, performing wifely duties and doing household chores. For a brief period, she had started a small business making chair backs but even those proceeds went to her husband Govati.

While all of this happened the couple had moved houses multiple times and Emmaculate had been led to believe it was because the couple was renting these houses. This was true about the first, but not the second and third. Govati Mhora had been using his pension and employment benefits to purchase these houses and kept it away from his wife because he felt that if she was not contributing financially she had nothing to do with it.

In 2010 Emmaculate Mhora filed for divorce and an order seeking a 50% share of the property she was now aware belonged to her husband Govati and err go the marriage. Govati and his legal counsel made two arguments :

  1. The house was not matrimonial property because the property had been purchased by his efforts without any financial contribution from  Emmaculate.
  2. If the house was, in fact, matrimonial property an equitable share below 50% should be awarded to her. 

The matter was presided by Justice Sylvia Chirawu-Mugomba and she ordered that Emmaculate Mhora be awarded 50% of the property. While many judgments have been handed down granting women a share of marital property at dissolution it was unprecedented for it to be a 50% share under the circumstances. This is important because for a long time now Zimbabwean women have been getting the short end of the stick when marriage and property rights intersect.

Justice Chirawu started her judgment by quoting Chimamanda Achide Ngozi and the importance of paying attention to multiple narratives when deliberating on outcomes that affect women, and most importantly affect equality. There is a tendency in legal spaces to walk on eggshells when discussing equality because while the law claims to be fair and objective, fairness and objectivity are only effective in an already level playing field.

The judge stated that it was not possible to place a numerical value on the non-financial contributions of women in a marriage for a long time. It was especially significant when she addressed societal perceptions around gender roles and the obligations many women face to completely dedicate their lives to men and family life. 

Property sharing at the dissolution of marriage is dealt with under the Matrimonial Causes Act, specifically section 7 which states that courts have the discretion to divide property as they see fit. As fair as one can try to be, personal bias is inescapable and that is why over the last few years this section has been interpreted in multiple ways and laws around matrimonial property are constantly evolving. The current position is that property should be divided into

      Property acquired before the marriage (his & hers)

      Property acquired during the marriage (theirs) 

This allows the courts to distinguish property that belongs to the individuals and the property that belongs to the marriage. One of the arguments of Govati Mhora was that the property in question should have just been categorized as his. In the appeal, his counsel argued that Justice Chirawu had not diligently applied principles in previous cases and that is why she had concluded that a 50% share was equitable. A questionable averment that implies reasonable deduction cannot possibly award a woman half of a property she indirectly contributed to.

On the 15th of November 2019, Govati Mhora’s appeal against Justice Chirawu’s decision was heard in the Supreme Court and judgment was reserved. If this judgment is upheld it will represent the continued emergence of progressive judicial activism that informs public policy and bends political will to recognize circumstances that the law is not always able to adequately protect women.  This is important because each time a decision makes it through the door, it makes room for another. Although it would be a dismal end, an overturn of this judgment still would not erase the efforts of Justice Chirawu to recognize the constitutional shortcomings of property sharing in Zimbabwe.

The formal justice system has been failing Zimbabwean women for a long time now. It is necessary for the realization of access to justice for women that each component in the justice system functions efficiently and aware of gender disparity.

More updates on this case to come.

FULL CITATION : MHORA V MHORA HH 446-18/ SC617/18

ORGANIZATIONS HELPING INDIGENT WOMAN IN FAMILY LAW

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