The
applicant is the respondent's wife, married to him in terms of the Marriages
Act [CChapter 5:11]. They fell in love and married while they were working
for Standard Bank Zimbabwe. In 2010, the respondent secured a job with
Standard Bank Qatar. The applicant left her job with Standard Bank Zimbabwe to
follow and live with her husband in Qatar where she secured a job with DHL.
The
love which saw them marrying and living together in Qatar has faded.
The
respondent transferred to Standard Bank Dubai. That act brought misery to
the applicant. She lost her right to stay and work in Qatar as this
depended on her husband's stay in that country. The respondent persuaded
her to relocate to Zimbabwe on the pretext that he was going to arrange for
their stay in Dubai. Instead of a welcome to Dubai, she received summons
for divorce from the respondent. She stayed with her parents in
Chitungwiza were she depended on them financially except for the irregular
receipts of amounts of US$500= - which have now ceased.
The
applicant had no option but to file this application for maintenance pending
divorce in the sum of US$1,500= per month and contribution towards costs of the
divorce in the sum of US$1,500=.
The
respondent initially opposed both….,.
The
applicant is now employed, earning a total package of US$459= per month, though
she has not yet started earning that salary. It was argued on her behalf that
delays of up to six (6) months are not unusual. What is important is that she
is now employed and will be paid her salary in spite of the delays. The court
should determine the maintenance the respondent should pay. He is employed,
earning a salary of US$6,000= per month. He claims to have loans which almost
wipe out his salary. The applicant, who previously worked for Standard Bank,
said the Bank does not allow one to take loans which exceeds half of his/her
salary. The applicant did not state when the loans will be paid up.
The
circumstances in which he lured the applicant back to Zimbabwe so that he could
institute divorce proceedings against her gives the impression that he is a
calculating litigant who can turn events to his own advantage. The loans may
therefore be a ploy to deny the applicant adequate maintenance.
The
respondent is responsible for the applicant's present circumstances. She was in
employment which he caused her to lose. He was previously erratically giving
her US$500= per month. He, on receiving the application, offered her US$100=
per month. On hearing that she was now employed, he withdrew the offer of
US$100= per month. This gives the impression of an insensitive man, who,
despite his ability to maintain the applicant, and what he has done to
impoverish her, does not care about her maintenance. He, in fact, seems bent on
insuring that she does not enjoy what she used to enjoy when they were staying
together. She is, however, still his wife and entitled to be maintained by him
at the standard of living they were used to, till a decree of divorce is
granted. That is when the case law on spousal maintenance relied on by counsel
for the respondent will apply.
The
applicant has, since her coming back to Zimbabwe, been staying with her parents
in Chitungwiza. Except for the erratic payments she received from her husband,
she was totally dependent on her parents. Her founding affidavit indicates
that she requires maintenance of US$1,500= pending divorce. She wants to rent
her own accommodation and live a life independent of that of her parents. Her
circumstances have, however, changed for the better. She is now employed and
staying at the school where she teaches. Counsel for the applicant, however,
submitted that she still needs her own accommodation in town,as she should not
be confined to rural life. That may be so, but she no longer needs the amount
she originally claimed. She now has an income of her own, which, despite delays,
will be paid to her. Her real needs will be determined on the basis of her
changed circumstances.
The
applicant seems to be aware of the effect of her changed circumstances. She, in
her answering affidavit …., said;
“I
deny that I was sitting on my laurels because I recently secured a teaching job
with the Government with effect from the 23rd January 2014 at
Chironana Secondary School, Mahusekwa, Marondera. Respondent can continue giving me the
US$500= which he said was surplus money.”…,.
This,
in my view, is the applicant's realistic assessment of her present
circumstances. If she gets US$500= per month from the respondent, that will
give her a total of US$959= per month. She had asked for US$1,500= which seems
to have been on the high side.
In
the case of Galante v Galante 2000 (2) ZLR 453…, (SC) McNALLY JA gave guidelines on how
and what should be considered in determining an application for maintenance pendete lite.
The
court will thus adopt a robust approach to the assessment of an appropriate
level of maintenance pendent lite.
A
spouse, whose divorce case is pending, is as of right, entitled, other things
being equal, to maintenance pendete lite, until a
decree of divorce is granted. He or she is entitled to continue enjoying the
standard of life he or she was used to. On the other hand, maintenance for
a former spouse may be subject to other considerations, namely, those set out
in section 7(4) of the Matrimonial Causes Act [Chapter 5:13]. It is
therefore not correct to apply the principles applied in determining
maintenance after divorce to an application for maintenance pendete lite.
In
this case, the applicant is clearly entitled to maintenance at the standard of
living she was enjoying in Qatar until the respondent duped her into returning
to Zimbabwe.
The
issue to be determined is the quantum of maintenance, which need not be
determined with the exactitude of post divorce spousal maintenance or general
maintenance.
The
court is entitled to adopt a robust approach. The applicant is now employed.
What she now needs is top-up maintenance which will enable her to live a
standard of life she was used to….,.
During
the hearing, counsel for the applicant applied for the back-dating of the
maintenance to be granted to the date of the applicant's application. He relied
on the cases of Taneka v Taneka 1993 (2) ZLR 9 and Barasi v
Barasi 1978 RLR 348.
Counsel
for the respondent opposed the backdating of the maintenance if any is granted.
He, in fact, initially strongly opposed the granting of any maintenance but
seemed to have changed his view as he ended up offering the US$100= the
respondent had withdrawn on hearing that the applicant was now employed.
In
the case of Taneka v Taneka 1993 (2) ZLR 9, ROBINSON J, relying on the authority
in Lindsay v Lindsay 1993 (1) ZLR 195 (SC) back dated the maintenance pendete lite he granted to the date of application. In the
case of Lindsay v Lindsay 1993 (1) ZLR 195 (SC), KORSAH JA…, dealing with the
back-dating of maintenance pendete lite, said;
“I
now turn to the issue of arrear maintenance. It seems to me that there is no
reason in principle why an order for maintenance pending the determination of
the main divorce suit should not be made effective from the date of presentation
of the application for such an order and ending with the date of determination
of the suit, as the court thinks reasonable. After all, were the applicant not
in need of such maintenance at the time of the application, the application
would not have been mounted.
The
fact is that the legal procedures of swearing affidavits, opposing affidavits
and answering affidavits all take up so much time, not to mention the date of
set down and the time for the final determination of the application. If it
were not possible to back-date an order to the time of presentation of the
application, an applicant for maintenance pendente lite would suffer
considerable prejudice, not because of any fault on her part, but because of
the recalcitrance of an obdurate husband, who ought not to be permitted in law
to benefit from protracting the proceedings so as to reduce the burden of
maintaining his wife. It is just and equitable, therefore, that such a man
should be saddled with the burden of arrear maintenance whenever it is claimed
and it is apposite to grant it. I am of the view that it was for these reasons
that arrear maintenance prior to the date of judgment was granted in Barass v
Barass supra at 388E-G. The learned trial judge was justified, in this
instance, in ordering that the payment of maintenance should commence from 1
April 1992.”
The
applicant applied for maintenance on 8 January 2014.
The
respondent put up an unnecessary spirited defence in circumstances where a
reasonable husband would only have negotiated for a reasonable quantum of
maintenance. This led to delays in the finalisation of the applicant's
application, forcing her to continue suffering the lack which visited her upon
the respondent losing love and affection for her. If the court does not order
the payment of maintenance from the date the application was lodged the
respondent will benefit from the delays he deliberately caused. A cunning
spouse should not be allowed to get away with such trickery. Justice must be
done between the spouses.
In
the result, I make the following order:
1.
The respondent shall, with effect from 1 May 2014, pay to the applicant
maintenance pendete lite in the sum of US$500= per
month until the determination of the pending divorce case HC9686/14.
2.
The respondent shall pay arrear maintenance to the applicant at the rate of
US$500= per month for the period 8 January 2014 to 30 April 2014.
3.
…,.
4.
The respondent shall pay the applicant's costs.
