MUSARIRI v MUTAVAYI & ORS 2010 (2) ZLR 475 (H)

Flynote

Family law - husband and wife - divorce - division of property following divorce - wife granted half share in matrimonial home - wife's right to home - extent of such right where property registered in husband's name - sale of home - whether wife entitled to have sale set aside - failure D of wife to obtain cession or transfer of her half share thereof - no title conferred on her in respect of former matrimonial home - subsequent sale to third party - husband entitled to sell house - wife having no more than a personal right against husband in respect of her half share in the former matrimonial home

Headnote

Consequent upon the divorce between the plaintiff and the first defendant, the parties were awarded, by the magistrates court, equal shares in the former matrimonial home. The plaintiff, however, did not arrange for a cession or a transfer of her half share in the house into her name. Thereafter, the first defendant, in whose name the house was registered, sold the house, at a proper market value, to the second defendant and transfer in accordance with the sale was duly made. The plaintiff, however, alleged that she had been unaware of the sale and did not consent thereto. She sought an order nullifying the agreement of sale between the first and the second defendants, alternatively an order that the agreement was valid only in respect of the first defendant's half share in the house. The second defendant joined the first defendant in opposing the order sought and submitted that she was entitled to evict the plaintiff from the house which she continued to occupy. Held, that plaintiff's consent to the sale of the house was not required becauseshe did not hold any rights thereto. The court order awarding her a half share in the house did not amount to conferment of title therein. In the absence of a cession or a transfer of the half share of the property into her name, she had no more than a personal right against the first defendant.

Held, further, that having regard thereto and the fact that the house was sold at a proper market value, the plaintiff's claim to set aside the sale must be dismissed, in its entirety, with costs.