GUVAVA J: The parties were married in terms of the Marriage
Act [Cap 5:11] on 30 May 1998. The marriage was blessed with four
minor children Melanie Munashe Tangirai (born 18 February 1999), Malvin Tinashe
Tangirai (born 24 January 2003), Cerise Vongaishe Tangirai (born 20 March 2004)
and Denise Tangirai (born 2 March 2007). Following certain unhappy differences
the parties separated in 2008. They have not lived together as husband and wife
since that date. Upon separation the plaintiff remained with the custody of the
three eldest children whilst defendant retained custody of the youngest child.
On 4 January 2011 the plaintiff issued summons out of this court seeking a
decree of divorce, custody of the three minor children already in his custody
and distribution of the parties' matrimonial assets. The defendant whilst
admitting that the marriage had broken down counter-claimed for custody of all
the minor children, maintenance in the sum of US$200 per month for herself and
US$100 per child per month, and an equitable share of their matrimonial
property.
Following a Pre - Trial Conference before a judge in
chambers the parties filed a Joint Pre-Trial Conference Minute wherein they
agreed that their marriage had irretrievably broken down. They also agreed that
they were each entitled to a stand in Dema.
Six issues were referred to trial and these were as
follows:
1.
Whether or not the marriage has broken down?
2.
Which party should be granted custody of the minor children?
3.
What rights of access should the non- custodian parent enjoy?
4.
What maintenance should the non-custodial parent pay towards the minor
children?
5.
Whether or not defendant is entitled to post divorce maintenance and if so the
quantum thereof.
6.
What would constitute just and equitable distribution of matrimonial property?
It seems to me that the first issue is not an issue for
determination by this court as the parties are agreed that the marriage has
broken down. There is clear evidence that the marriage has broken down as they
have been living apart for a period in excess of four years. In the case of Ncube
v Ncube 1993 (1) ZLR 39 (S) KORSAH JA held that where the parties are
agreed that the marriage has broken down it is not necessary for the
court to enquire into the cause of the breakdown as divorce is now based
on the no fault concept. I will therefore deal only with the five remaining
issues.
The plaintiff gave evidence and testified that he resides
at house number 1990 Unit L in Chitungwiza which is rented accommodation.
He is employed at Chrystal Sweets (Pvt) Ltd as a quality assurance officer. He
testified that when he married the defendant she was employed as a till
operator at a shop in Chitungwiza. She then stopped working after their first
child as she had had a disagreement with her employer. They had four children
during their marriage. He explained that during the time they were living
together they had marital problems such that the marriage broke down and they separated
in July 2008. The plaintiff stated that he wanted to be awarded the following
property:
(a) stand No 2231 Unit N Seke,
Chitungwiza,
(b) Mazda B2500 pick-up truck,
(c) one metal TV stand,
(d) 24 inch LG television set,
(e) Phillips DVD player,
(f) 3 door wardrobe,
(g) a refrigerator, and
(h) Building materials.
He stated that he should be awarded the property as he
acquired it prior to his marriage to the defendant. He also stated that
defendant made no direct contributions to property acquired after the marriage
as she was not employed. He explained that he acquired the pick-up truck from
proceeds that he received from a Lancer Mtsibishi motor vehicle that he
purchased before he married the defendant. As this money was not enough he
received a loan from his employer which he topped up to purchase theB2500. He
testified that he repaid the loan on his own without the assistance of the
defendant.
The plaintiff also stated that he should be awarded the
building materials as he acquired them without the assistance of the defendant.
He stated that he purchased 10 000 bricks, window frames and a French door
after he received a loan from his employer.
Stand 22321 Unit N Seke was acquired in 2002. Plaintiff
told the court that in 1993he was employed by Blue Ribbon Foods. As part of the
company's employee retention scheme he registered with Chitungwiza
Municipality. When he was allocated the stand in 2002 his employer had to
guarantee the loan as he did not earn enough money to purchase the stand. He
stated that the property is an undeveloped stand and should not be awarded to
their children as they did not have the money develop it or to pay Municipal
charges. It hadalready accrued debts from non-payment of rates. In the event
that the property is allocated to him he would develop the stand whereas the
defendant had stated that she was not prepared to contribute to its
development.
In regard to the two stands in Dema, he stated that stand
385 is registered in his name and stand 811 is registered in the defendant's
name. He would like to be awarded the stand in his name whilst defendant is
awarded the stand in her name.
With regards to the minor children he stated that he has
looking after the children on his own since the defendant left in 2008. He
stated that he was also responsible for the children when the defendant was
still staying with him.The eldest child was now at a boarding school. In 2009
the defendant left the country and went to Botswana and returned in 2010. She
left the youngest child who was in her custody in the rural areas with her
parents. Plaintiff states that the last child is now different from her
siblings because she has not had access to good schools. It was his prayer that
he be awarded custody of all four children whilst defendant has access on
alternative weekends and school holidays.
The plaintiff stated that defendant has been looking after
herself since 2008 and there is no reason why he should maintain her now.He
also states that he only earns a salary of US$610 and cannot afford to maintain
the defendant and the children in the amounts claimed. He stated that in the
event that custody is awarded to the defendant he offers an amount of US$30 per
month per child in addition to paying all their school related expenses.
The defendant told the court that she resides at stand 2189
Unit N Chitungwiza with her sister. She chronicled the problems that she and
the plaintiff had and the efforts she had made to reconcile with the plaintiff.
She confirmed that she had tried to use the traditional methods and the pastor
at her church. However these all failed and theyseparatedin July 2008 after the
plaintiff chased her out of the house. They have not lived together as husband
and wife since then. I will not dwell on this evidence as it is quite apparent
during the trial that the marriage between the parties has broken down.
The defendant testified that she wanted custody of the all
the children. She stated that in 2008 she approached Zimbabwe Women Lawyers
Association (ZWLA) with a view to getting custody of the children. After
discussions with the plaintiff they agreed on her getting access to the three
minor children who had remained with the plaintiff. She told the court that she
should get custody of the children as they are neglected by the plaintiff. When
theyvisit her they always come with old clothes. At times the children also
pass by her house when they come from school looking for food as they will be
hungry. She however said sometimes she is not at home as she is in the business
of buying and selling goods. She confirmed that the children attend school in
town except for Melanie who is now at boarding school and the youngest who is
in her custody who attends crèche in the area. Defendant stated that Denise
attends a local crèche because although plaintiff had offered to pay for the
crèche fees he had stated that defendant would have to meet the transport
costs. As she didn't have the money the child ended up attending a local
crèche. Defendant stated that if she was awarded custody of the children she
would grant plaintiff access on alternative weekends and school holidays.
On maintenance defendant stated that she was claiming
US$200 per month for herself and US$100 per month for each of the children.
When she got married the plaintiff she was employed at Manyere Mini Market as a
till operator. After the birth of their first child plaintiff indicated that he
did not want her to work so that she would look after the children. She opened
a tuckshop and would sell goods from home to raise money for the family. The
tuckshop was destroyed by the Municipality following operation Murambatsvina.
She testified that she wanted to be maintained by the plaintiff because when
they got married they had agreed that plaintiff would go to school first and
after he had completed his degree she would also go to school. After he had
qualified she never went to school although she had passed five “O” levels
subjects.
She broke down her requirements as US$100 for medical
expenses, US $50 for clothes and toiletries and US$50 for her hair.
With regards to the children she broke down their
requirements as follows:$150 for rent, $40 for electricity and water, $20 for
airtime, $150 for groceries, $100 for the maid, $50 for clothes, $50 for
entertainment and $50 for incidentals. She stated that he total amount required
for the children per month added up to $590. She said that if the plaintiff
paid the $400 they required she would meet the difference.
With regards to her claim for the property she testified
that she wanted the B2500 sold and the proceeds shared equally as she had
assisted him in paying back the loan. At the time the loan for the truck was
being deducted from the plaintiff's salary she was operating the tuckshop and
therefore supplementing the family's income. She also stated that she
wanted the television awarded to the person who would get custody of the
children. She stated that she was not claiming the building materials because
she wants the house to be built. In 2004 a cottage with three rooms was
constructed on the stand. When the cottage was constructed she was at home with
the pregnancy of their third child. She contributed indirectly by assisting the
builders. Tenants are staying on the stand and are paying rent to the
plaintiff. She stated that she would want the property registered in the names
of the four children.
In assessing the evidence it was my view that the plaintiff
gave his evidence well. He came across as a person who was genuinely concerned
about the well-being of his family especially his children. Although I did not
believe him on the level of contribution by the defendant towards the upkeep of
the household I however took the view that her contribution being mainly
indirect may have been difficult for him to quantify. In his submissions to the
court he stated with regard to the moveable property that he be awarded the
motor vehicle, refrigerator, television and the wardrobe and indicated that the
rest of the property should be awarded to the defendant.
The defendant on the other hand did not impress as a good
witness. She seemed not to have the interest of the children at heart. The
impression portrayed by her evidence was that she was bent on “fixing” the
plaintiff probably because of the breakdown of their marriage. The claim for
maintenance especially for herself was exaggerated and not well thought out. In
her submissions she even backtracked on evidence she had given in court and
claimed a 50% of all the property including moveables whereas in court she had
stated that the television should be awarded to the party who is granted
custody of the minor children. She had also stated that the building materials
should be used to build the stand so that it benefits the children.
In determining this matter I will deal with each of the
issues raised by the parties.
CUSTODY OF THE MINOR CHILDREN
In making an award for custody upon divorce the court must
be guided by the best interests of the minor children. This power is granted to
the court in terms of s 10 (1) of the Matrimonial Causes Act [Cap 5:13].
The provision mandates the court to conduct an inquiry and commit children of
the marriage into the custody of the parent best suited to have such custody.
The Supreme Court in the case of Hackim v Hackim
1988 (2) ZLR 61 defined what is meant by the term best interest of the
child. In determining what is the best interest of a minor the court is
enjoined to consider all the circumstances and every aspect of the child's
upbringing that is age, sex, health, education, religious needs, social and
financial position of each parent and his and her character, temperament and
behaviour towards the minor child. (see also Chitongo v Chitongo
2000 (1) ZLR 76.)
It is not in dispute that the defendant has not had custody
of three elder of the children since she left the matrimonial home in 2008.
From that period to date the plaintiff has had custody of the three eldest
children whilst the defendant has had the custody of the youngest child. The
plaintiff has thus effectively looked after these children for over four years
without the assistance of the defendant. The eldest child now attends boarding
school whilst the other two are day scholars. From the evidence led it was not
in dispute that they attend good schools and appear to be doing well in school.
The youngest child who has been in the custody of the defendant appears not to
have fared as well as the older siblings. The child was primarily in the
custody of the grand parents in the rural areas whilst the defendant was in
Botswana. The question which presents itself is whether it is in the best
interest of these children to be removed from the plaintiff and given to the
defendant. Whist this court accepts the version by the defendant that she was
evicted from the family home by the plaintiff without the children she has not
done anything to try and secure the custody of the three eldest children. In
terms of s 5 of the Guardianship of Minors Act she could have approached any
court for their custody as the law recognizes that the mother is the best
parent to have custody of the children upon separation. In her evidence it has
remained largely unclear why she decided to leave them in the custody of the
plaintiff.
In my view this was based on an acceptance by the
defendant that the plaintiff was a good father and was looking after the
children well. I did not believe the defendant when she stated that she did not
seek custody because she did not have the resources to look after the children
because if she had claimed custody at that point ZWLA would have advised her of
her right to claim maintenance.
In the case of Mutetwa v Mutetwa1993 (1)
ZLR 176 (SC) it was held that a father can only get custody of children if he
can show that that it would be in the best interest of the children that he should
have custody. In examining the best interest of the minor children in this
matter I am inclined to find that custody should be awarded to the plaintiff.
He has shown that he has the best interest of the children at heart. He has
given them a stable home and a good education in the best schools within his
means. I have not seen the same commitment from the defendant.
The defendant stated in her evidence that she is a cross
boarder trader and travels out of the country from time to time to order goods for
resale. The problem that arises when she is away will in my view continue to
present itself because the children are day scholars and will need to attend
school on a daily basis. The defendant stated that if she was awarded custody
of the children they would go to school by bus. The plaintiff on the other hand
does not travel and drives the children to school when he goes to work in the
mornings. Whilst there is nothing wrong in children going to school by bus it
is patently obvious that they would be more comfortable if they were driven to
school.
In my view the best interest of the children would be
secured by placing them in the custody of the plaintiff and granting the
defendant access to the children during weekends and school holidays. The
children will go to school in relative comfort without the stress of waking up
very early in order to be certain of getting a bus to school. In this way the
children will continue to get the best of care from both parents as the
defendant can arrange her business trips in such a way that she is available
when the children come to be with her. Melanie who is now an adolescent will
also have an opportunity to get guidance and counsel from the defendant during
school holidays when she is not at school. The youngest child will also grow up
with her siblings and avoid separating them from each other. I will, in the
order that I make award the defendant generous access since they reside in
Chitungwiza so that she can have a close relationship with her children.
MAINTENANCE
I have determined that custody of the children should
be awarded to the plaintiff. it is therefore not necessary for this court to
consider the issue of maintenance for the minor children as the plaintiff was
not claiming maintenance from the defendant. The issue before me is thus
whether the defendant is entitled to any maintenance from the plaintiff.
Under common law spouses are under a reciprocal duty to
support each other. My understanding of this duty is that it arises where a
spouse shows that they are not in a position to maintain themselves and
therefore need assistance from their former spouse. The spouse claiming
maintenance must satisfy the court that they are unable to look after
themselves and require assistance from their former spouse. This position comes
out clearly in the case of Chamba v Chamba 1992 (2) ZLR 197
where the court stated as follows
“Marriage can no longer be seen as
providing women a bread ticket for life. A marriage certificate is not a
guarantee of maintenance after the marriage has been dissolved.”
In this case the defendant has been looking after herself
since she left the matrimonial home in 2008. She is still young and is not
disabled in any way. She earns a reasonable income of US$150 from her
activities as a cross boarder trader. Whilst it is apparent that the plaintiff
earns a salary of US$610 which is considerably more than that of the defendant
I consider the fact that from that sum he has to look after his own needs as
well as those of the children. An examination her requirements for maintenance
as set out in her evidence does not give the impression that she needs money
for her upkeep. She clearly wants money for her beautification and that is not
the purpose for which maintenance is solely awarded especially when it is
claimed as against a salary of $600 which is supposed to also look after four
minor children. The claim for $100 per month for medical expenses was not
explained at all. The defendant does not say whether she has a peculiar medical
condition which would require her to need such a large sum of money for medical
bills every month.
In my view therefore the defendant has not established a
basis upon which this court should award her maintenance post divorce.
DIVISION OF PROPERTY
In making an award of matrimonial property the court is
enjoined to apply the principles set out in s 7 (1) of the Matrimonial Causes
Act [Cap5:13.] This provision gives the court very wide discretion in
regards to sharing and distribution of matrimonial property. (see Gonye
v Gonye SC 15/09)
The defendant has claimed a 50% share of the immoveable
property on the basis that she contributed indirectly to its acquisition and
development. The plaintiff on the other hand submits that defendant is not
entitled to a share of this stand since he has already agreed to her getting
the Dema stand and her contribution to the acquisition of this stand was
indirect.
In my view however the plaintiff's submission is not the
proper approach to take. The stand in Dema was in the defendant's name. It was
already hers and the plaintiff would have had great difficulty in making out a
case to deprive her of that property.( see Takafuma v Takafuma
1994 (2) ZLR 103)
In making an award in respect to the Chitungwiza
stand however, the court must take into account that the defendant did make an
indirect contribution to its acquisition and development. Although the
defendant was unemployed she contributed considerably as a wife, mother,
counsellor, housekeeper and day and night nurse for the family. In the ten
years she was married to the plaintiff she had four children which is not an
easy task. She was a wife and mother and ensured that plaintiff had her support
to get his degree. In the case of Usayi v Usayi 2003 (1) ZLR
685 ZIYAMBI JA said such contributions cannot be quantified in monitory terms.
In my view the defendant is entitled to a 50 % share of
this property. In view of the sentiments expressed by the defendant that she
would like the property preserved for the children of the marriage I will give the
plaintiff an opportunity to buy out the defendant of her share.
The defendant also claimed a 50 % share of the value of the
sale of the motor vehicle. In considering this claim I am of the view that the
motor vehicle should be retained by the plaintiff. In making this award I
have considered that I have awarded custody of the four children to the
plaintiff. The children attend school in town which is 25 km away from where
they reside. In my view it would be more comfortable for the children to be
driven to school in the morning. In this way they will not arrive at school
tired and stressed due to transport problems.
The defendant also stated that she would not claim the
television but that it should be awarded to the parent who is awarded custody
of the children. She also stated in her evidence that she would not claim the
building material so that it is used for the development of the Chitungwiza
property. I will therefore not make an award in respect to these items.
Having made the above findings I thus make the following
order:
1. A
decree of divorce is hereby granted.
2.
Custody of the minor children Melanie Munashe Tangirai (born 18 February
1999,MalvinTinasheTangirai (born 24 January 2003), Cerese Vongaishe Tangirai
(born 20 March 2004) and Denise Tangirai (born 2 March 2007) is hereby awarded
to the plaintiff.
3.
The defendant is awarded access to the minor children every weekend from Friday
after school and half of all school holidays.
4.
The plaintiff is awarded the moveable property set out in annexure A of the
order and the defendant is awarded the property set out in annexure B.
5.
The plaintiff is awarded stand 385Dema Township as his sole and exclusive
property.
6.
The defendant is awarded stand 811 Dema Township as her sole and exclusive
property.
7.
The defendant is hereby awarded a 50% share of stand 2231 Unit N, Seke
Chitungwiza.
(a) The
plaintiff is granted the right to buy out the defendant's 50 % share of the
property.
(b) The property
shall be evaluated by a valuer from the Registrars list of valuers within 30
days of the grant of this Order.
(c) The
plaintiff shall pay out the defendant her 50% share of the property within 90
days reckoned from the date upon which he is served with the valuation report.
(d) In the event that
the plaintiff fails to pay out the defendant of her 50% share as set out in
this Order the property shall be sold at best advantage and the parties shall
share the net proceeds equally.
(e) The parties
shall pay for the cost of valuation equally.
8.
Each party shall bear their own costs.
Munangati & Associates, Plaintiff's Legal
Practitioners
Manase & Manase,
Defendant's Legal Practitioners
