Temporary protection of one’s rights to matrimonial property registered in spouse’s name (Part 2)

This is the second part of a two-part series on the protection of rights to matrimonial property which was registered in your spouse’s name written by Zimbabwe Women Lawyers Association.

THE first part was published in The Herald on May 10, 2017 and can be found at the following link http://www.herald.co.zw/temporary-protection-of-rights-to-matrimonial-property-in-spouses-name/. This week we shall continue the discussions of how we can temporarily protect our rights to matrimonial property focusing on recording a caveat over immovable property registered in one’s spouse’s name. Please note that this is merely a temporary measure as the registered owner has real rights over the property and can therefore make decisions over it.

Recording a caveat over immovable property

A caveat may be placed over immovable property such as a house. This caveat is a temporary measure which prevents the spouse who has title over the matrimonial property in question from selling the property from right under the nose of the spouse with no title.

This caveat may only be placed if there is impending legal action which involves the dissolution of the matrimonial property in question.

This caveat can only be placed if the sale of the matrimonial property in question will potentially prejudice the other spouse.

For example, John and Chipo are currently undergoing a divorce in the High Court of Zimbabwe. They own a four bedroom home which is registered in John’s name and is subject to distribution in terms of the divorce.

The divorce action is still pending and a decree of divorce has not yet been granted by the court.

John decides to sell the matrimonial property before the court has issued a decree of divorce which will outline each party’s share. Before the house is sold however, Chipo catches wind of John’s plans.

Chipo then places a caveat over the matrimonial property which has the effect of preventing John from selling the property pending the determination in the High Court.

Chipo is able to prove that if John goes ahead with the sale, she will be prejudiced of her share. The court is therefore able to grant a caveat under such circumstances.

The challenge with caveats is that in the event that the title holding spouse manages to sell the property to an innocent third party without the knowledge of their spouse, the third party will only be notified about the existence of the caveat upon attempting to make transfer of the title of the property.

This means that a malicious spouse may proceed to accept payment from the purchaser and sign an agreement of sale with the purchaser of the property, all before the knowledge of the caveat comes to light. Important points to note regarding caveats:

◆ Recording a caveat is merely a temporary measure Like all of the relief we have discussed, a caveat is only a temporary measure. It cannot prevent a registered owner of a property from selling their property for a lengthened or an indefinite period of time.

The caveat is effective where there is a legal action pending. This leads us to the next point.

◆ There needs to be an impending legal action. A caveat will only be effective where there is an impending legal action. So in the above example, the matrimonial property in question is subject to a determination in a divorce case which is currently before the High Court. A caveat will not likely be placed where there is no impending legal action.

◆ Due to the above, it is quite clear that a caveat may not be used to manipulate the court in preventing a disposal of property. In one reported case law, the wife had recorded a caveat on a property on the strength of a divorce action which had been pending for 15 years. The court held that the parties did not seem willing to pursue the divorce action, and were merely using it as a means to prevent the sale of the immovable property in question as the home was being sold by a third party in execution of a debt. This means that you cannot put a caveat to stop sale where there is execution of a debt that the parties have not paid.

◆ Recording a caveat does not mean that you now have ownership. It merely means that your rights to the property may be protected whilst they are being determined by a court of law.

◆ The court prefers to protect the rights of innocent third parties Where by some chance, the spouse who is the registered owner of the property manages to sell the property to a third party who is ignorant of the domestic dispute between the husband and wife; the court prefers to protect the interests of the innocent third party.

So they will most likely make a determination that will protect their interests, whilst trying to balance the interests of the injured spouse. ◆ Caveat operates between

the spouses. This point is similarly related to the above point. Where a malicious spouse has already drawn an agreement of sale with an innocent purchaser and accepted payment for the property, the court in an attempt to protect the interests of the innocent purchaser will not lightly reverse the sale of the property however the interests of the non title holder spouse may still be determined, and they may still claim their share in the proceeds of the property.

◆ How do you record a caveat? A caveat is recorded by way of an interdict obtained from the court. You may engage the services of a legal practitioner to assist you in obtaining the court order for an interdict.

Zimbabwe Women Lawyers Association hopes that this article has been informative in educating you on your options on means to protect your right to matrimonial property, as we are well aware that many have found themselves in predicaments with regards to matrimonial property.

We have observed that in the majority of instances the non-title holder is mostly the woman hence she suffers the most prejudice.

We would like to stress however that the best and long term protection one could possibly afford them self is to ensure that one is a co-owner registered on the title deed.

For feedback questions and comments please feel free to email zwla@zwla.co.zw or to phone our hotline number on 0782 900 900 or our toll free on 08080131