A FEMINIST APPROACH TO PROPERTY SHARING: WHY ZIMBABWEAN WOMEN SHOULD READ THEMHORA JUDGEMENT.Published on May 19th, 2023 by admin
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 :
- The house was not matrimonial property because the property had been purchased by his
efforts without any financial contribution from Emmaculate.
- 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