NDOU J: The
plaintiff sued the defendant for divorce on the basis of irretrievable
breakdown of her marriage with the defendant.
She also sought custody of the two minor children of the marriage. She also claimed 15% of the defendant's half
share of the proceeds from sale of the matrimonial home, being stand number 311
Oregon Avenue, Newton West, Bulawayo.
The plaintiff also sought further ancillary relief in respect of the
distribution of the movable assets.
It is common cause that the marriage
between the parties has irretrievably broken down and there are no reasonable
prospects of reconciliation. Both
parties confirmed this in their testimony in this court. The parties have not been living together as
husband and wife from the year 2000 to date i.e. about eleven years. The minor children are currently living with
the plaintiff and the parties agreed that it is in their best interest that the
status quo is retained.
The parties agreed that the sole
immovable property described above be sold and the proceeds thereof be shared
equally. The parties also agreed on the
distribution of the movable assets acquired during the marriage and their
agreement will be reflected in the draft order.
At the commencement of the trial, there were two main issues outstanding
i.e. the issue of the fraction of the defendant's half share of the proceeds
that should go towards the maintenance of the children and whether the
defendant should be given a chance to buy off the plaintiff her half
share. The plaintiff, is staying with
the three children including Rujeko Nyandoro who has attained age of majority
but is still dependent on her. Rujeko is
a student at Lupane State University and the plaintiff is claiming maintenance
for her essential educational needs.
Rujeko has just gone past her first term in her four year degree
programme. In terms of section 8(3) of
the Matrimonial Causes Act [Chapter 5:13] the plaintiff is entitled to claim
maintenance on behalf of Rujeko even though she is a major. Section 8(3) provides:
“(3) An
appropriate court may direct that the maintenance order referred to in
subsection 2 shall extend beyond the date when the child attains the age of 18
years.
(a)
If
the child is or will be receiving education or training beyond that age or
(b)
If
there are special circumstances which justify such direction.”
The plaintiff gave oral evidence and tendered documents to
confirm that notwithstanding Rujeko's majority status she is solely responsible
for the child's fees and educational needs.
This is a proper case for me to exercise my section 8(3) discretion and
order the defendant to contribute towards the educational requirements of
Rujeko. From the plaintiff's
conservative projections, she will require the sum of $4 870,00 for the next
four years. This is based on the current
tuition fee of US$380,00 per semester plus incidental expenses.
As regards the claim for maintenance, as alluded above, the
plaintiff claims a lump sum equivalent to 15% of the defendant's half share of
the proceeds from the sale of matrimonial house. In terms of section 7(1)(b) of the Matrimonial
Causes Act, supra, a party may apply
to the court for an order regarding payment of maintenance by way of a lump sum
or by way of periodical payments. The
plaintiff has sought a lump sum payment on the following grounds. From the evidence the defendant is not
gainfully employed and he confessed that there are indeed, no prospects of him
securing employment. He has failed to
secure employment over a number of years since he was retrenched from his
previous employment. In any event, he
attained pensionable age of 67 years. He
has failed to utilize the parties' arable piece of land for market
gardening. Over the years, the defendant
contributed a meager US$50,00 towards the maintenance of his three
children. The plaintiff has successfully
established that it is in the best interest of their children that the
defendant makes a lump sum maintenance contribution. His share of proceeds from the matrimonial
house affords him a realistic opportunity to make a meaningful contribution
towards the maintenance of his children – Sibanda
& Anor v Sibanda 2005(1) ZLR
97 (S) at 100-101. The plaintiff claimed
15%. The defendant initially offered 10%
but during his testimony he conceded and said he is prepared to contribute the
15% claimed by the plaintiff on condition that the lump sum was used solely for
the benefit of his three children. The
plaintiff has a history of working hard for the welfare of the children and I
have no reason to believe that she would abuse the lump sum given to her for
the maintenance of the three children. A
case has been made by the plaintiff for the lump sum of 15%. The plaintiff's undisputed testimony is that
the two minor children Mitch and Webster require a new set of uniforms at the
beginning of the year pegged approximately at US$190,00. They also require school fees of US$135,00
per term until their completion of advance level of study. They also require stationery of about
US$200,00 per annum. The total average
cost for both children up to the completion of advanced level is approximately
US$9 375,00.
Besides educational requirements there are groceries
estimated at US$250,00. There are also
medical expenses, water and electricity with a total of approximately
US$700,00. It is, therefore, apparent
from the above that the projected maintenance for the three children of the
parties would be in excess of US$33 000 for the next four years.
Further, the defendant has prayed that he be given the option
to buy off the plaintiff's half share within six months. The plaintiff does not oppose this prayer per
se, but she says the defendant should be given 30 to 60 days. Plaintiff would also want to be given the
option to buy off the defendant. The defendant
has stayed in the matrimonial house for several years and still resides
there. It has been his home for several
years. He is in the late afternoon of
his life. It will be only fair to grant
him the option to buy off the plaintiff.
But, six months would not be a reasonable period to exercise this
option. A shorter is desirable. In the event that defendant fails to exercise
the option in given period, it is only fair that it be extended to the
plaintiff. After all, she is staying
with three children of the parties in rented accommodation.
Accordingly, it is hereby ordered that:
- A decree for divorce be and is
granted;
- The plaintiff is awarded as sole
and exclusive property the following:-
-
Oak
bedroom suite
-
Queen
size bed
-
Hotpoint
washing machine
-
Four
single beds (for the children)
-
One
Panasonic television plus Panasonic home theatre system
-
Sony
VCR
-
Hotpoint
refrigerator
-
Capri
deep freezer
-
Electrolux
oven and hob
-
Electrolux
microwave oven
-
Imported
kitchen cupboard door with worktops
-
All
kitchen utensils and gadgets
-
Dining
room suite plus two side cupboards
-
Cream
leather lounge suite
-
Two
red easy chairs
-
1
x 4 seater lounge chair and stool
-
Console
table
-
Rugs
and curtains
-
Picture
frames and mirrors
-
One
centre table with drawers
-
Set
of glass tables, and
-
4
plate non-functional stove
- The defendant is awarded as his
sole and exclusive property the following:
-
Two
single beds
-
Double
size bed
-
Floral
lounge suite
-
Centre
table and two side tables
-
Panasonic
television set
-
Philips
radio
-
Blue/green
carpets
-
National
refrigerator
-
Garden
chairs and table
-
Garden
tools
-
Plates,
cups and pots
-
2
plate stove
-
Lounge
suite
-
Electric
kettle
-
One
drill
-
Telephone
handset
-
Two
kitchen cupboard doors, and US$1 000 being value of one of the cars.
- The plaintiff is awarded custody
of the minor children, Mitch Nyandoro, a boy born 5 January 1994 and
Webster T. Nyandoro, a boy born 21 November 1996, with the defendant
afforded reasonable access to the said children.
- The matrimonial house shall be
sold and proceeds shared equally by the parties.
- The defendant pays lump sum
maintenance towards his three children the equivalent of 15% of his half
share from the proceeds of the sale of the matrimonial house being stand
311 Oregon Avenue, Newton West, Bulawayo.
- The defendant is granted an
option to buy off the plaintiff's share within three months of the
granting of this order, failing which the plaintiff is granted an option
to buy off the defendant's share within three months of such failure by
the defendant. In the event that
both parties fail to exercise their respective options, the house shall be
sold to best advantage.
- The matrimonial house shall be
evaluated by a reputable estate agent in Bulawayo for the purposes of
paragraph (5), (6) and (7) of this order.
- Each party shall bear its own
costs.
Mashayamombe and Co, plaintiff's legal practitioners
Bulawayo Legal Project Centre, defendant's
legal practitioners
