Jules Patrick Lafontant v Elinor Kaye Kennedy

The parties were married in Italy in 1983. The respondent (Mrs Kennedy) was a New Zealand citizen who worked for an international organisation in Zimbabwe but did not acquire domicile. The appellant (Mr Lafontant) was domiciled in Haiti. They were divorced in Haiti on 21 November 1997 at her instance, and she reverted to her maiden name. Subsequent to the divorce, they became embroiled in a dispute over immovable property at 13 Hillary Road, Ashbrittle, Harare (registered in both their names), and a 1992 Nissan Sedan vehicle. Mrs Kennedy claimed she was the sole owner of both properties. The evidence showed that all money for purchasing the land and building the house came from her, as Mr Lafontant had neither money nor regular income. Mrs Kennedy testified that the property was registered in joint names for convenience so that Mr Lafontant could attend to matters when she travelled for work.

• Whether section 7 of the Matrimonial Causes Act [Chapter 5:13] applies to property disputes between parties divorced by a foreign court
• What law applies to determine proprietary consequences of the marriage
• Whether a court can depart from the presumption of equal shares in jointly-owned property on grounds of equity alone
• Whether Mr Lafontant's registered half share in the property was held as nominee for Mrs Kennedy

The appeal was dismissed with costs. The respondent (Mrs Kennedy) retained the relief granted by the High Court, though the Supreme Court clarified the proper legal basis was that Mr Lafontant held his share as nominee rather than the apportionment approach used by the trial judge.

Section 7 of the Matrimonial Causes Act [Chapter 5:13] does not apply to property disputes between parties who were divorced by a foreign court (i.e., not an 'appropriate court' as defined in the Act). The provision is ancillary to divorce proceedings and can only be invoked by a Zimbabwean court when it grants a divorce decree or thereafter in relation to its own decree. Where immovable property is jointly owned, there is a rebuttable presumption that co-owners hold in equal shares. A court cannot depart from this presumption on mere equitable grounds but requires a solid legal foundation. Where one party pays for property entirely but registers it in joint names for convenience, the non-paying party may be held to be a nominee, and the paying party can terminate that nominee arrangement by instituting legal proceedings.

The Court noted other possible legal grounds for challenging registered co-ownership that were not specifically pleaded in this case, including fraud, mistake, or an allegation that the co-owner's share was a donation between spouses voidable at the instance of the donor (referring to Lee and Honoré Family, Things and Succession 2 ed at para 61). The Court also made observations about the application of foreign law, noting that since 23 October 1992, by virtue of section 25 of the Civil Evidence Act [Chapter 8:01], courts may no longer presume that foreign law is the same as Zimbabwean law. McNally JA expressed the view that had the matter been properly pleaded, the trial judge would not have been induced to deal with the matter on the basis of apportionment, and his proper choice would have been between awarding the property entirely to Mrs Kennedy or leaving things as they were.

This case is significant in Zimbabwean law for clarifying the territorial limitations of the Matrimonial Causes Act's property division provisions. It establishes that section 7 of the Act applies only to divorces granted by Zimbabwean courts (appropriate courts), not foreign divorces. The case also reinforces principles of co-ownership, confirming the rebuttable presumption of equal shares in jointly-owned property and the legal bases upon which this presumption can be rebutted, including the nominee concept. It demonstrates that courts cannot redistribute property between co-owners on mere equitable grounds without a solid legal foundation such as agency/nominee relationship, fraud, mistake, or donation between spouses.