The applicant was married to the third respondent in terms of the Marriages Act on 19 April 1996 in Chipinge. During the marriage, the parties acquired immovable property registered under Deed of Transfer No. 7231/97 in the third respondent's sole name to secure a mortgage. The applicant relocated to the United Kingdom and sent money to pay the mortgage, which was paid off and cancelled in 2004. The third respondent relocated to Malawi, opened a business, and married another woman. The applicant returned to Zimbabwe and stayed at the matrimonial home, renovating it extensively. The third respondent issued divorce summons claiming sole ownership but admitted the applicant was entitled to a share of matrimonial property. In 2023, the first respondent approached the applicant claiming he had purchased the property from the third respondent. The property was sold and transferred under Deed of Transfer No. 2184/23 for $20,000.00. The applicant sought cancellation of this deed, alleging the property was undervalued and the first and second respondents connived with the third respondent to circumvent divorce proceedings.
The application was dismissed with costs on the ordinary scale.
A wife cannot stop her husband from selling matrimonial property registered in his sole name. The transfer of title can only be reversed if there is evidence that the purchasers are mala fide purchasers. To prove undervaluation, issues of value are factual and must be proved through valuation by registered valuers, not mere assertion. The party alleging undervaluation and connivance bears the onus of proving such allegations. Mere knowledge that the seller is a married man without his wife's consent is insufficient to establish bad faith on the part of purchasers.
The court noted it was not persuaded to award costs on a higher scale, suggesting that while the application failed, there were no exceptional circumstances warranting punitive costs. The third respondent filed an opposing affidavit but did not file heads of argument and did not appear at the hearing, though this did not affect the outcome as the applicant's case failed on the merits against the first and second respondents.
This case reaffirms the established principle in Zimbabwean law that a spouse cannot prevent the sale of matrimonial property registered in the other spouse's sole name during the subsistence of the marriage. It emphasizes that to set aside such a transfer, the challenging spouse must prove both undervaluation and bad faith on the part of the purchaser through proper evidence, including expert valuation reports. The case demonstrates the strict evidentiary burden required to cancel a deed of transfer under section 8 of the Deeds Registries Act and the importance of discharging the onus of proof when alleging fraud or connivance in property transactions.