During
the subsistence of their marriage, the parties bought a Stand, commonly known
as House Number 29 Heythrop Road, Montrose Bulawayo. This property was
registered in their joint names.
Ex facie, they own the house in equal shares.
Both
parties contend that they sold their respective properties which they owned
before they got married. The plaintiff sold her flat while the defendant sold
his house in Nketa, Bulawayo. Each party claimed that the proceeds from sale of
his or her property were channeled towards the purchase of the matrimonial
house. The plaintiff, on the one hand, claims that she be awarded 80% of the
said former matrimonial property and the defendant 20%. The defendant, on the
other hand, maintains that the parties should be awarded 50% each.
In
her testimony, the plaintiff justified her entitlement to 80% by producing
several copies of her pay slips which evince that the parties obtained a loan
from Founders Building Society, which loan has been repaid by way of deductions
from her salary by way of a stop order facility. She also testified and
established that the deposit for the purchase of the disputed property was a
flat that she owned before the defendant featured in her life. It is her
testimony that although the property was registered in their joint names, it
was never her intention that they owned it in equal shares as she contributed
substantially more towards its purchase. She, however, admitted that the
defendant would sometimes contribute towards the settling of the loan but that
such contribution does not exceed 10% of the purchase price and value of
improvements of the property. The plaintiff produced two documents, one of
which showed that the defendant collected all the money raised through a loan
for home improvements from the lending bank. He gave part of the amount to a
named woman whom she believed was a girlfriend. The other document was a
funeral insurance policy in another woman's name who was described as the
defendant's spouse. The net effect of this testimony is that the defendant was
an irresponsible husband who went around splashing money on women or
girlfriends at the exclusion of the plaintiff and their family and that he
contributed insignificantly towards the purchase and improvement of the
matrimonial property.
Looking
at the documents that she produced and what she said in her evidence, I am
satisfied that she has made out a credible case that she contributed
substantially more than the defendant did.
The defendant, on his part, failed to establish through credible
evidence that he contributed anywhere close to the 50% that he is claiming. I
find his explanation for secretly taking out a funeral policy in another
woman's name incredible. Why would he take out a funeral policy in favour of
his brother's wife behind his wife's back? The same applies to the proceeds of
the home improvement loan which he gave to the other woman. His explanation for
this act is unbelievable.
The
plaintiff also produced, by consent, an affidavit by her brother, Jeremiah
Chideme, whose basic contents was that the defendant never contributed towards
the upkeep of the plaintiff's parents. The defendant had alleged that he had
assisted the plaintiff's parents' i.e as a way of indirect contribution.
It
is beyond dispute that the defendant contributed towards the purchase of the
disputed property. The issue is how much
he contributed.
The
payslips that evince the plaintiff's contribution (i.e through salary
deductions) amounting to about $218,000= on top of the 51% deposit which she
had paid from the proceeds of the sale of her flat. The plaintiff was working throughout the
period that she was settling the loan and the stop order for the loan was
always being deducted from her salary. The plaintiff, therefore, contributed
substantially more than the defendant did towards the acquisition of the
matrimonial property.
On
the question of contributions towards improving the matrimonial house, the
plaintiff stated that both parties contributed towards extending the cottage
and filling cracks. The defendant says he did so single-handedly.
I
believe the plaintiff's version because she established that these extensions
and improvements were financed through a loan which she repaid.
As
far as the indirect contributions made by the defendant, it is beyond dispute
that the plaintiff was employed throughout her stay with the defendant, whereas
the defendant was in and out of employment and at one time he was serving a
prison term. During the days when the defendant was out of employment, the
plaintiff would be looking after the defendant and the family and over and
above contributing towards the acquisition of the matrimonial home. The
plaintiff and the defendant were not blessed with children but the plaintiff
was also looking after the defendant's children from previous relationships. In
fact, at one stage, the defendant deserted the matrimonial home to go to live
with a girlfriend leaving the plaintiff taking care of these children.
From
the foregoing, I find that the defendant was trying to overstate both his
direct and indirect contributions towards the acquisition and improvement of
the matrimonial home. The defendant's testimony is characterized by evasiveness
and gross exaggerations. I find that the defendant is not a credible witness.
It is clear that his contribution towards the acquisition and improvement of
the matrimonial house is far less than that of the defendant.
Another
relevant fact is that the plaintiff and defendant are aged 61 years and 57
years respectively. The parties are in
the afternoon of their lives. Further, the parties' marriage lasted twelve (12)
years. In coming to a just and equitable
distribution of the matrimonial home, this court is enjoined to consider the
parties' age and duration of the marriage.
As
alluded to above, the property is registered in the parties' joint names. This
is an important fact. The parties are
both registered on the property with equal shares. The parties are
sophisticated as evinced by their lifestyle and business venture. In
registering the property in their names, the plaintiff was alive to the fact
that she was giving the defendant an undivided half share in the property. It
is trite law that the registration of rights in terms of the Deeds Registries
Act is not just a formality. It is a matter of substance as it conveys real
rights to the person in whose name the property is registered. The plaintiff
has to lay out a basis for the taking away part of the 50% share of the
defendant in the matrimonial home. The onus is on the plaintiff to show that
the defendant, despite being a 50% holder of real rights in the property,
deserved to have his share reduced. The presumption of equal ownership can be
rebutted by looking at the parties' respective contributions as well – Mtuda v
Ndudzo 2000 (1) ZLR 710 (H)…,.
In
claiming 80% share, the plaintiff was effectively revoking the donation due to
the ingratitude shown by the defendant – Lafontant v Kennedy 2000 (2) ZLR 280
(S). Though the plaintiff did not specifically plead that she was donating part
of her share, her testimony that she was mindful of the parties' respective
contributions indicates this. The court cannot ignore this because this was not
specifically pleaded – Mtuda v Ndudzo 2000
(1) ZLR 710 (H). From the above evidence, the plaintiff has managed to rebut
the presumption of equal ownership. In my view, taking all the above factors
into account, I order that it is just and equitable that the matrimonial house,
being Number 29 Heythrop Road, Montrose, Bulawayo be sold and the plaintiff be
granted 60% and the defendant 40% of the proceeds thereof.
Each
party to pay own costs.
