The
parties were married to each other in terms of the then African Marriages Act
[Chapter 238] on 26 June 1980. Under Bulawayo Magistrates, case number CC32/10,
the respondent instituted proceedings seeking the dissolution of the marriage
and ancillary relief.
This
appeal is basically about the sharing of the matrimonial house known as Number
4369 Nkulumane, Bulawayo.
The
trial magistrate ordered that the said property be shared equally between the
parties. The appellant was given six (6) months to buy out the respondent's 50%
share of the property, failing which the property was ordered to be sold and
the proceeds thereof shared equally. The property was acquired during the
subsistence of the customary union between the parties. The appellant does not
seem to appreciate the provisions of section 7(4) of the Matrimonial Causes Act
[Chapter 5:13]. What is taken into consideration is not just the direct
financial contributions and the party in whose name the property is registered.
The court is enjoined, by section 7(4) of the Matrimonial Causes Act [Chapter
5:13] to also take into account the indirect contributions made by each spouse
to the family. Such indirect
contributions include, inter alia, looking after the home and caring for the
family and any other domestic duties. Other relevant factors include the age of
the respondent, her future financial needs, obligations and responsibilities –
Usayi v Usayi 2003 (1) ZLR 684 (S). In
this case, the Supreme Court upheld a judgment of the High Court awarding the
wife a half share of matrimonial house. At pages 687-688, ZIYAMBI JA had this
to say:-
“Mr
Gijima, who appeared for the appellant, was persistent in his submission that
the respondent, having made no financial contribution to the acquisition of the
house, was not entitled to an award of 50 percent of the sale price. Having
regard to the provisions of section 7(4) of the Act, this submission is
unsound. The Act speaks of direct and indirect contributions. How can one
quantify, in monetary terms, the contribution of a wife and mother, who, for 39
years, faithfully performed her duties as a wife, mother, counselor, domestic
worker, housekeeper, day and night nurse, for her husband and children? How can one place monetary value the love,
thoughtfulness and attention to detail that she puts into the routine and
sometimes boring duties attendant or keeping a household running smoothly and a
husband and children happy? How can one measure, in monetary terms, of creation
of a home and the creation of an atmosphere therein from which both husband and
children can function to the best of their ability? In light of these many and
various duties, how can one say as it is often remarked “throughout the
marriage she was a housewife. She never worked”? In my judgment, it is precisely because no
monetary value can be placed on the performance of the duties that the Act
speaks of “direct or indirect contribution made by each spouse to the family,
including contributions made by looking after the home and caring for the
family and any other domestic duties.”
See also Gonye v Gonye SC15-09;
Takafuma v Takafuma 1994 (2) ZLR 103 (S) and Mangwedeza v Mangwendeza 2007 (1)
ZLR 216 (H).
In
this case, the parties were married for around thirty (30) years. The
respondent spent most of her married life looking after the party's rural
homestead. There was no evidence led during the trial in the court a quo which
suggests that she failed in her duties and responsibilities as a wife. There is
no misdirection on the part of the magistrate in sharing the matrimonial house
equally. What the appellant is pleading in the appeal is essentially poverty
i.e. that he cannot buy out the respondent's 50% share. There is a provision in
the magistrate's order that caters for such inability to buy out the
respondent. The property should just be sold and the proceeds thereof shared
equally as directed by the magistrate. The magistrate's judgment in this regard
cannot be faulted. There is no merit in this appeal at all.
Accordingly,
the appeal is dismissed with costs.
