MAWADZE J: On 9 September 2009 the
plaintiff issued summons out of this court seeking a decree of divorce on the
basis of irretrievable breakdown custody of the two minor children, an order of
sharing matrimonial property and that each party bears its own costs.
The
defendant filed her plea and counter claim on 8 October 2009 in which she
sought an order for custody of the two minor children, maintenance for the two
minor children, an order of sharing matrimonial property and post divorce
maintenance for the defendant in the sum of US $250-00 until defendant secures
a job or becomes self-supporting.
The
parties who now seem to accept that their marriage is indeed beyond
resuscitation married each other in terms of the marriage Act [Cap 5:11] at Harare on 19 July 1996. The
marriage is blessed with two children both females, Sifiso Dube born on 19
September 1995 and Stabile Dube bone on 7 December 1999.
Although
the marriage between the parties has irretrievably broken down the parties live
under the same roof, albeit without sharing conjugal rights. During the
subsistence of the marriage the parties did not acquire any immovable property.
According to the plaintiff the matrimonial estate consists of “a set of sofas,
24 inch colour TV, upright fridge, two plate stove, bedroom suite, DVD player,
DSTV decoder and kitchen utensils”. Out of this property the plaintiff only
lays claim to the set of sofas, head board of the bedroom suite and the DSTV
decoder.
At
the pre-trial conference stage the parties remained poles apart. The following
issues were therefore referred to trial for determination;
1. Whether
the marriage has irretrievably broken down with no reasonable prospects of
salvaging a normal marriage relationship.
2. Which
parent should be awarded custody of the two minor children
3. What
access rights should be exercised by on non-custodian parent.
4. The
quantum of maintenance the non-custodian parent should contribute towards the
upkeep of the two minor children.
5. Whether
or not the defendant is entitled to post divorce maintenance from the
plaintiff, and if so, the quantum thereof.
At
the commencement of the trial the parties agreed to share the
matrimonial estate as per para 4 of
the defendant's counter claim which proposes as follows:-
(i)
That the plaintiff be
awarded as his sole and exclusive property the following:-
“radio, DVD player, dressing table, one
big sofa, and one small
sofa .
(ii)
That the defendant be
awarded as her sole and exclusive property the following :-
DSTV
decoder satellite dish, bedroom suite, head board, upright fridge, 2 plate
stove, one big sofa, one small sofa, TV cabinet
and all kitchen utensils”.
I
now proceed to deal with the contentious issues.
Break
down of marriage
In
terms of s 5(1) of the Matrimonial Causes Act [Cap 5:13] the court may grant a decree of divorce on the grounds of
irretrievably breakdown of the marriage if it is satisfied on evidence adduced
that the marriage relationship between the parties has broken down to such an
extent that there is not reasonable prospect of the restoration of a normal
marriage relationship between the parties. Section 5(2) (a) to (d) of the same
Act outlines the facts or circumstances which may show the irretrievably break
down of the marriage. The list is not exhaustive.
The
plaintiff in his evidence adhered to the averments in para 6 of his
declaration. The plaintiff alleged that the parties are now incompatible mainly
due to defendant's alleged adulterous affair and that this has resulted in the
parties not sharing conjugal rights for the 1½ years prior to the issuance of summons.
It is plaintiff's evidence that although the parties share the same house they
have lost love and affection for each other.
The
defendant in her evidence conceded that the marriage relationship between the
parties has broken down to a state which is beyond repair and that this is no
longer an issue. The defendant however vehemently denied allegations that she
committed adultery. Let me briefly dispose of the issue of the alleged adultery
as it was also raised in relation to the dispute of custody of the minor
children.
The
plaintiff only revealed in his viva voce
evidence that the defendant committed adultery with one Paul Green, a British
citizen who was employed by the British Embassy in Zimbabwe but has since left
the country. This specific accusation was flatly denied by the defendant. The
defendant dismissed claims that she confessed to the said adultery.
The
defendant in her evidence stated that at the material time she was employed by
a certain cleaning company which was contracted to clean the premises of the
British Embassy. The defendant said the plaintiff wanted her to engage in an
unlawful and corrupt act at the British Embassy and she refused. In specific
terms the defendant said the plaintiff who allegedly engages in shady deals wanted
her to abuse her access to British Embassy official stamps and make
endorsements in some Zimbabwean passports belonging to the plaintiff's clients
which she refused.
Under
cross examination by the defendant's counsel, the plaintiff was unable to
substantiate the allegations of adultery. In fact the plaintiff said the non
enjoyment of conjugal rights was by mutual consent. In my view the plaintiff
has just made a bare allegation of adultery against the defendant. This
allegation was not, on a balance of probability, proved to be a fact. The
allegation was rebutted by the defendant and it remains an allegation the
plaintiff failed to prove objectively. In the result this court shall not take
into consideration the alleged adultery by the plaintiff against the defendant
in determining other relevant issues like custody and maintenance of the
children and spouses.
What
I find to be clear on the basis of evidence adduced is that the marriage
relationship between the parties has irretrievably broken down. The parties no
longer have love and affection for each other. A decree of divorce as prayed
for by both parties should be granted.
Custody
of the Minor Children
The
issue of custody of the two minor children both female, Sifiso Dube born on 19
September 1995 (now about 16 years old) and Stabile Dube born on 7 December
1999 (now about 10 years old) remained very contentious during the trial. The
elder child attends Roosevert Girls High School in Harare and stays with the
plaintiff's sister in Eastlea during school terms. She only stays with the
parents during school holidays. The younger child still at primary school stays
with the parents. Each party is claiming custody of the two minor children.
It
is trite law that in dealing with the question of custody of minor children the
court should solely be guided by the best interests of the children. See Makuni v Makuni 2001(1) ZLR 189 (H) at
192A, Galante v Galante (3) 2002 (2)
ZLR 408 (H) at 418-419.
In
the case of Jere v Chitsunge 2003 (1) ZLR 116 (4) at 118C-E CHEDA J summed
up, what in my view are some of the most pertinent factors which constitute the
best interest of the child. The learned Judge has this to say in Jere v Chitsunge supra at 118C-E:-
“The
interest of the child means, therefore, that the interests of the parents are
secondary. The common practice is that, if all else is equal, especially if the
child is young, the mother is likely to be given custody. The following in my
view is what the court should take into consideration in determining the
interest of the child. The list is not exhaustive;
1. The
fitness or otherwise of the custodian parent.
2. The
age of the child
3. The
sex of the child
4. The
length of the time the child has lived with either party or her relative
5. The
degree of emotional stress which the child will suffer in the event of the
child being separated from either parent.
6. Any
risk of ill treatment by either party or member of his or her household”.
The
plaintiff is not formally employed. He engages in informal trading,
selling computer hardware or being
contracted by travel agencies. According to the plaintiff he realises an income
of about US$150-00 per month although his expenses far exceeds this projected
income. I got the impression that whilst the plaintiff sought to down play the
extent of his income the defendant seemed to exaggerate the plaintiff's means.
It has not been disputed that the plaintiff shoulders the burden of the family
expenses which include inter alia
school fees for the children, food water and electricity bills, transport and
other needs. The parties stay in a house with two rooms which belongs to the
plaintiff's relative and they do not pay any rentals save for water and
electricity bills.
The
defendant on other hand is employed as a general hand or cleaner earning a
salary of US$100-00 per month, an income she also uses to compliment the
plaintiff in meeting the family needs. It is clear that once a decree of
divorce is granted the defendant would have to look for alternative
accommodation for herself (and the children if she is awarded custody).
I
am not persuaded by the plaintiff's evidence that he should be awarded custody
of the minor children on account of his higher educational qualifications
compared to the defendant whom he said is unable to assist the children with
homework. The same goes for the argument that the plaintiff has accommodation
in which to stay with the minor children. I do not believe these are factors
which impinge on the defendant's suitability as a custodian parent nor would
they tilt the scales in favour of the plaintiff.
The
plaintiff indicated that he is willing to pay school fees for the children and
meet all their educational requirements. He urged the court not to place undue
regard to the sex of the children because he has a maid who can look after both
children very well at home while he would be at work. In addition the plaintiff
stated that the eldest child stays with his sister in Eastlea most of the time,
that is during school term and that his sister is of impeccable character hence
a good role model for the child. My understanding of the plaintiff's evidence
in this regard is that he is a suitable parent to be awarded custody of the two
minor children not necessarily because he can look after the children better
but he has other people who can do that for him.
The plaintiff
went at length in his evidence to outline various reasons why custody of the
children should not be awarded to the defendant. I am not persuaded by most of
the reasons given as the basis for allegations made was never factually proved.
I shall simply highlight and comment on some of the issues raised by the
plaintiff.
(a) That
the defendant spends long periods of time away from home and would either be in
her native country Zambia or in South Africa. An example was given that the
defendant left for Zambia in August 2009 and only returned six months later in
February 2010. This was described by the plaintiff as the normal pattern of the
defendant's conduct and that the defendant would lie that she would be attending
funerals. I am satisfied with the
defendant's explanation that she had last visited her native country in 1994
hence when she attended a funeral in August 2009 her stay was prolonged as she
had to meet other relatives. She challenged the plaintiff to cite any other
incidents and none were cited. In fact the defendant's evidence that she only
visited her sister in South Africa once to collect money for the benefit of the
family was not controverted. There is therefore no evidence to suggest that the
defendant is an uncaring parent who frequently abandons the family and children
for no good cause.
(b) That
the defendant has suicidal tendencies hence unfit to be awarded custody of the
children. The plaintiff said whenever they quarrel she threatens to hang herself
and that at one point she asked the younger daughter to give her water in order
for her to take an overdose of malaria tablets. All this was disputed by the
defendant. In fact under cross examination the defendant conceded that the
defendant's emotional behaviour is consistent with the trauma arising from the
difficult marriage relationship the parties have endured for a long time rather
than it being an inherent weakness in the defendant's character.
(c) That
the defendant is foul mouthed and not a good parent as vulgar language is an
inseparable part of her vocabulary even in the presence of the children and
that she is of violent disposition as at one time she threatened to scald the
plaintiff with boiling cooking oil. Again under cross examination the plaintiff
conceded that the defendant does not use foul language in relation to the
children and that the defendant's argues or quarrels is with the plaintiff not
children. I find this to be merely the consequences of a strained marriage
relationship rather than proof of the defendant's character.
(d) That
generally the defendant is dishonest and that as proof she always hides
important family documents like children's birth certificates, the plaintiff's
driver's licence and at one time the family satellite dish later recovered from
the defendant's friend. In fact the plaintiff said they also stay with a
stepson, the defendant's child but that he is not at school as the defendant
has not cared to ensure that he attends school. Even if I was to assume that
such incidents happened (the defendant disputes this), I am still not satisfied
that it can be the basis to find that the defendant is unsuitable parent to be
awarded custody.
(e) That
the defendant's moral conduct is improper as she committed adultery. I have
already dealt sufficiently with this allegation which I find to be baseless
hence no probative value should be placed upon it.
During cross
examination the plaintiff was asked this pertinent question by the defendant's
counsel:
“Q Does she love the children?
A Yes”
All
in all the plaintiff conceded that the defendant loves the children and that
she is a hardworking woman and that she does not abuse the children.
I am satisfied
that both the plaintiff and the defendant are responsible parents. I am however
inclined to grant custody of the minor children to the defendant mainly on
account of the sex of the children and their respective ages and stage of
development. It is not a principle of law that a girl child should be placed in
the custody of the mother. See Goto v
Goto 200 (1) ZLR 275 (H), Hackim v Hackim 1988 (2) ZLR 61 (S) and Goba
v Muradzikwa 1992 (1) ZLR 212 S
at 214 B-C.
As already
explained the proper approach for the court is whether the plaintiff being the
father is better than the defendant being the mother in the care and upbringing
of their two daughters. In other words who best caters for the interests of the
two daughters. Each case therefore should be judged on its own merits bearing
in mind that it is the best interests of the child which are paramount,
predominant and the sole consideration. The parents' interest are secondary.
In casu I am satisfied that the interests
of the two female children are better served in the custody of their mother.
The defendant loves the children and no adverse findings have been made against
her in relation to all relevant factors. The youngest child needs constant
motherly care and the adult is going through the process of adolescence which
needs proper nurturing and guidance. It is on that basis that I am of the view
that on a balance of probabilities the best interests of the two girl children
are better served by awarding custody to their mother, the defendant rather
than the father, the plaintiff.
Access
Rights
From the
evidence led both parties accept that the non custodian parent should have
reasonable access to the children. The nature and extent of such access is a
matter of this court's discretion. After resolving the issue of custody in
favour of the defendant, the only issue is what access rights should be awarded
to the plaintiff. I am inclined to ensure that the bond between the children
and the plaintiff remain strong. In that regard I believe it is fair and just
to allow the plaintiff access to the children one weekend per month and during
each alternate school holiday.
Maintenance
I
am not satisfied that that on the evidence led there is a basis to award
post-divorce maintenance in favour of the
defendant. The plaintiff is unemployed whereas the defendant is employed.
Considering the financial burden this court shall place on the plaintiff in
respect of the two children it is clear to me that the plaintiff has no
capacity to meet further financial obligations as post-divorce maintenance for
the defendant. The defendant's claim in this regard can therefore not succeed.
As regards
maintenance for the minor children the plaintiff has indicated his willingness
to pay all school fees and other requirements for the children. I have already
dealt with the respective means of both parties. As already discussed the
defendant would have to find alternative accommodation for herself and the
children. I believe the plaintiff should therefore contribute towards the
children's accommodation, school fees and all educational requirements, and
medical bills. On the other hand the defendant should be able to provide for
day to day needs for the children inclusive of food. I shall therefore order
the plaintiff to pay for the children's educational requirements, medical bills
and in addition a sum of US50-00 per month per child as contributory
maintenance to cater for rentals.
The
order which I make is the following:
- A decree of
divorce be and is hereby granted.
- The custody of the
two minor children Sifiso Dube (born on 19 September 1995) and Stabile
Dube (born on 7 December 1999) be and is hereby awarded to the defendant.
- The plaintiff be
and is hereby granted reasonable access rights to the two minor children
which shall be exercised as follows:
(i)
He shall have the two
minor children one weekend per month and during each alternate school holiday.
(ii)
He shall have the
children on any other special occasions as the parties may agree from time to
time.
(iii)
The access shall be
exercised in consultation with the defendant.
- The plaintiff be
and is hereby ordered to pay each of the children's entire school account
including fees, levies uniforms and extra curricula activities, medical
bills and to pay contributory maintenance in the sum of US$50-00 per child
per month until each child attains the age of 18 years or becomes self
supporting which ever occurs sooner.
- Each party be and
is hereby awarded as his/her sole and exclusive property the following
movable property:
(a) For
the plaintiff:
·
Radio
·
Dvd player
·
Dressing table
·
One big sofa
·
One small sofa
(b) For
the defendant:
·
DSTV decoder
·
Satellite dish
·
Bedroom suite
·
Headboard
·
Upright refrigerator
·
2 plate stove
·
One big sofa
·
One small sofa
·
TV cabinet
·
All kitchen utensils
- Each party be and
is hereby ordered to bear its own costs.
Zimbabwe Women Lawyers Association, defendant's legal practitioners
