Can my spouse dispose of our house if my name does not appear on the title deed?

It is a well-established principle of law in Zimbabwe in the context of a valid marriage under the Marriages Act [Chapter 5:17] that a spouse whose name does not appear on the title deed does not have a legal interest in the property before divorce. Thus, a husband cannot bar his wife neither can a wife bar her husband from disposing of a house which is duly registered in his or her name, more so, when no divorce action requiring the distribution of such property has been instituted. However, the court can intervene where such a sale is not genuine and is meant to defeat the other spouses cause. This position has been fortified in the following cases:

However, in limited circumstances, the disposal of matrimonial property may be stopped. There, should be evidence that in disposing of the property, the disposing spouse is disposing the property under value, the property is being sold to a scoundrel, or the sale is intended to defeat the other spouses just rights. A spouse which seeks the courts assistance interdicting the disposal of matrimonial property must establish the lack of good faith on the one spouse’s part in the disposal and further establish that the sale is a sham or simply intended to defeat his or her just cause. Thus in Zimbabwe, a spouse has a right to sell a house forming part of the matrimonial estate, but registered in his or her sole name without the other spouse’s consent.

• (a) Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 RLR 261 (A); 1974 (1) SA 169 (RA); [1974] 1 All SA 289 (RA);
• (b) Muzanenhamo & Another v Katanga 1991 (1) ZLR 182 (S);
• (c) Dhlembeu v Dhlembeu 1996 (1) ZLR 105 (S);
• (d) Muganga v Sakupwanya 1996 (1) ZLR 217 (S);
• (e) Muswere v Makanza 2004 (2) ZLR 262 (H);
• (f) Mushati v Mushati & Others HH 225-11;
• (g) Sithole v Sithole HH 674-14;
• (h) Chiparaushe v Chiparaushe HH 312-17.

It therefore follows that where both spouses names appear on the title deed, the spouses own the immovable property jointly. In such a situation, such property cannot be disposed of without the consent of the other spouse.

The Supreme Court in the case of Ishemunyoro v Ishemunyoro SC 14-19 held that:

“The import of this provision is that a spouse whose name appears for instance, in the title deed of any immovable property enjoys full rights therein. He or she can deal with the property in any way he wishes, including alienating his rights therein or otherwise encumbering such property. Similarly, if both spouses are registered as joint owners of the property, each one enjoys full ownership rights over his or her share in the property. I have already found that in casu, the appellant and the first respondent each legally and independently own an undivided half share in the property in dispute. On the basis of common law as well as our matrimonial property regime, the shares owned by each of them, being real rights, cannot lightly be interfered with.”