UCHENA J: The plaintiff and
the defendant married each other on 20 July 2001. The plaintiff instituted
these divorce proceedings which the defendant is strenuously opposing.
The plaintiff offered the defendant
a stove, fridge, television, kitchen chairs and kitchen utensils, which they
acquired during the subsistence of their marriage, but claimed the matrimonial
home he said he acquired long before he married the defendant. The plaintiff
left their matrimonial home three years ago when the defendant had obtained a
peace order against him, he said the peace order did not order him to leave the
matrimonial home. He left because he feared the defendant would manipulate the
peace order against him as he no longer loved her. He said he has lost love and
affection for the defendant despite her protestations that she still loves him.
The defendant in her counter claim
claimed in addition to the movables offered by the plaintiff, a sum of
US$2000-00 being half of the value of improvements to House Number 324/8 Mbizo
during the subsistence of the marriage. The defendant further claimed a half
share of a fridge, colour television, double bed, and Toyota Land Cruiser she
alleges they acquired in South Africa during the subsistence of the marriage.
She also claimed for an order of maintenance in the sum of US$300-00 per month
and contribution towards her costs in the sum of $800-00.
The plaintiff gave evidence in which
he told the court of how their marriage broke down because of the defendant's,
refusal to comply with his directive that she should give up her cross boarder
trading. He also said she is difficult to live with as she is talkative and
argumentative.
After all the evidence had been led
from the plaintiff and his brother for the plaintiff and the defendant and her
friend for the defendant the following became common cause.
- That the parties have been on separation for three
years.
- That the defendant has been staying in their
matrimonial home, and looking after it during the plaintiff's absence.
- That she was paying electricity, water and rates bills
during his absence.
- That she at some stage stayed with and looked after the
plaintiff's children from his previous unions.
- That their union was not blessed with the fruits of the
womb, but that the only pregnancy she conceived for the plaintiff,
developed in her fallopian tubes leading to an operation, she said she
still suffers from.
- That she painted the house and contributed towards the
purchase of a gate.
- That she continued with her cross boarder trading.
- That she did not have evidence of the purchase of a
land cruiser and other movables she claimed were purchased in South
Africa..
- That the plaintiff's children eventually left the
matrimonial home and that she is now staying there alone.
There is no need to go over the
party's evidence. It is clear that the defendant still loves the plaintiff who
categorically said he has lost love and affection for her. It is trite that the
courts can not force parties to continue in marriage if the other spouse has
lost love and affection for the other even though the other spouse still loves
the other. See the case of Kumirai v Kumirai2006(1) ZLR 134
(H) at p 136 B-D. There is no doubt in my mind that the plaintiff no longer
loves the defendant. He has proved the break down of their marriage. A decree
of divorce will be granted.
There is very little in dispute over
the movables. The plaintiff offered to give the defendant the movables which
are in the matrimonial home less those which were left by his former wife which
the defendant concedes should be given to that former wife. The defendant's
claim to movables she claims were bought by the plaintiff in South Africa is
based on speculation. She does not have evidence that such property was ever
purchased. Her friend Nomatter Hodzi confirmed that the Toyota Land Cruiser was
merely talked about but was never seen. I am satisfied that the defendant's
claim over what she believed the plaintiff bought in South Africa was not
proved. There was in fact confusion in the defendant's evidence on whether or
not the plaintiff was staying in Botswana or South Africa. In evidence she said
he was in Botswana though in her plea and counter claim she said he was in
South Africa.
The parties should therefore share
what they acquired. There is no dispute over the movables. They will be awarded
to the defendant. The defendant has proved that she contributed to the
maintenance of the matrimonial home even though she did not contribute towards
its acquisition. She painted it, maintained it, and looked after it for three
years after the plaintiff had abandoned the matrimonial home. Mr Matsikidze
for the plaintiff in recognition of the defendant's contributions and her
preservation of the house offered her an amount of US$2000-00. That is the
amount the defendant had claimed for her contributions towards the immovable
property. See paragraph 2 of her counter claim.
The other US$4 000-00 was half of
the property she claimed they had acquired in South Africa. See paragraphs 3
and 4 of her counter claim. In view of her not having proved the existence of
that property that claim must fail. She had in fact claimed that they acquired
the alleged property in South Africa, yet its common cause that they never
stayed together outside Zimbabwe. She has no direct evidence of the purchase of
the alleged property.
The defendant in her counter claim
claimed maintenance in the sum of US$3 00-00 per month. In her evidence she
reduced it to US$150-00 per month. In her evidence the defendant said the
plaintiff is not permanently employed. She said she cannot look after herself.
This is however contradicted by her evidence to the effect that she is the one
who was looking after the matrimonial home including plaintiff's children. She
is a cross boarder trader. Her friend Nomatter Hodzi confirmed it. Post divorce
maintenance is paid to a spouse who cannot look after herself. I am convinced
that the defendant is well able to look after herself. There will be no order
for maintenance.
The defendant sought an amount of
US$800-00 being plaintiff's contribution towards her costs of suit. The
plaintiff said he is not employed and cannot afford the costs. He was however
able to engage a legal Practitioner to represent him at this trial. Though he
may be of limited means he cannot claim absolute poverty. It is apparent that
the defendant did not want this divorce. She remained looking after the
plaintiff's home and children. This demonstrates her commitment to the
marriage. The plaintiff is clearly to blame for this divorce. He must
contribute towards the defendant's costs.
In the result it is ordered
that,
- A decree of divorce be and is hereby granted.
- That the defendant be awarded the following movables, a
stove, fridge, television, kitchen chairs and kitchen utensils.
- That the plaintiff shall pay to the defendant a sum of
US$2 000-00, being her contribution towards the maintenance of the
matrimonial home.
- That the plaintiff shall have House Number 324/8 Mbizo
Township Kwekwe as is exclusive property.
- That the plaintiff shall contribute US$800-00 towards
the defendant's costs of suit.
Messers Matsikidze and
Mucheche, plaintiff's legal practitioners.
Defendant in Person
