The plaintiff's evidence on the issues…, was to the effect
that the parties separated in 1982.
At that time there was only the core house and the
extension of the house to a seven-roomed house was at slab level. He is the one
who was in gainful employment and so the improvements were effected by him
alone. After the defendant had left, he continued constructing the house to
completion in 1985.
Upon the defendant not returning, and on learning that she
had in fact married another man with whom she had two children, he approached
the courts seeking dissolution of the marriage. This was granted in September
1991 and the Certificate of Dissolution issued in January 1992.
It was the plaintiff's evidence that the defendant did not
make any financial contribution towards the initial payments for the core
house. She equally did not contribute financially towards the improvements.
Initially, her failure to contribute was because she had no sources of income.
Later, when she was doing some dressmaking and cross border trading, albeit
only twice, she still did not contribute towards the improvements. She did not
bring proceeds from her ventures to the family table. This was the source of
their misunderstandings that culminated in their separation.
As far as he is concerned, therefore, the defendant should
only be granted a 20% share of the value of the Stand as at the time she left.
The defendant, on the other hand, contended that she
immensely contributed towards the initial deposit for the house and subsequent
improvements. She contended she was engaged in vending wares, and, later, in
dressmaking (sewing) and cross border trading. In this way, she realised a
bigger income than the plaintiff and so she deserved an 80% share in the
property. It was also her evidence that at the time she left in 1982 the
property was complete as a seven-roomed house.
Though in her pleadings the defendant had denied that the
couple had separated for a long time leading to the dissolution of the marriage;
in her evidence in court she conceded that after separation in 1982 she only
returned to the matrimonial house in 2004 after being called back by some aunts
as their child, Chamunorwa, had become mentally challenged. Though she denied
marrying Caswell Chiwaridzo during that period, she admitted bearing two
children with Caswell Chiwaridzo. The dates of birth of those children were
given as 16th July 1985 and 5th August 1991.
Based on the defendant's concession it is thus clear that
the parties had already separated prior to the dissolution of their marriage in
1992. Hearing the defendant testifying, one was left wondering why, in her
pleadings, including the summary of evidence, she had been denying this fact….,.
The evidence by the parties on these issues shows a heavy
reliance on what each party claimed to have directly contributed.
The plaintiff's evidence was to the effect that he is the
one who paid the purchase price and paid for all the improvements without the
defendant's direct financial contribution. He testified that at the time of
separation, in 1982, there was only the core house and a structure up to slab level
for the extension of the other five (5) rooms.
He, however, could not produce any evidence in support of
the state of the improvements at the time of separation.
The defendant, on the other hand, contended that at the
time the property was bought she was into selling wares and would realise more
income than the plaintiff. She thus contributed more towards the purchase of
the property and the construction of the improvements.
In support of her contention, she tendered some receipts
for the purchase of building material. Those receipts were meant to prove that
she is the one who bought those building materials. Unfortunately, most of
those receipts were cash sale receipts with no name of the buyer. None of the
receipts contained the defendant's name. Some of the receipts in fact had the
plaintiff's name.
I am of the view that due to lapse of time and the fact
that the parties were married, the issue of who purchased what cannot be
resolved by the production of receipts. Receipts, in such instances, would be
kept in the house and whoever has access to them may not necessarily be the
purchaser.
I thus rule that the receipts tendered are of no value as
to who purchased what.
On the state of the house at the time of separation in
1982, the defendant contended that the house had been fully completed as a
seven-roomed house. To prove her point, she tendered some photographs she said
depicted part of the house. She also called Agnes Nyathi, the woman whose love
relationship with the plaintiff led to the 1982 separation….,.
I am also of the view that the pictures are not conclusive,
in themselves, as they do not depict when they were taken.
Though the evidence on the state of the house at the time
of separation has not been conclusive, I am of the view that that should not be
cause not to distribute the property.
It is my view that whilst the state of the house at the
time of separation is important, it must not be forgotten that the distribution
of assets of the spouses is not dependant on one's direct financial
contribution or on the state the property was in at the time of separation.
Section 7(1) of the Matrimonial Causes Act empowers the
court to apportion or distribute assets of the spouses at the time of granting
a decree of divorce or at anytime thereafter.
The term 'assets of the spouses' connotes assets that may be
in either spouse's name or jointly owned. See Gonye v Gonye 2009 (1) ZLR 232 (S).
Such assets include all assets purchased, whether before or during the marriage,
and includes property acquired after separation - unless such property is
specifically excluded in terms of section 7(3) of the Matrimonial Causes Act.
See Musonza v Musonza HH35-10 and Ncube v Ncube 1993 (1) ZLR 39 (S).
Section 7(4) of the Matrimonial Causes Act enjoins the
court to consider all the circumstances of the case and to endeavor, as far as
is reasonable and practicable, to place the spouses and children in the
position they would have been in had a normal marriage relationship continued.
Section 7(4)(a)-(g) outlines some of the factors identified
by the legislature. The first four considerations all address the needs of the
parties rather than their dues. The parties' direct and indirect contribution
is listed as the fifth. The last two considerations pertain to what each spouse
stands to lose and the duration of the marriage.
The most important objective in the consideration of all
the circumstances of the case, including factors outlined above, is to endeavour,
as far as is reasonable and practicable, and, having regard to their conduct,
is just to do so, to place the spouses and children in the position they would
have been in had a normal marriage relationship continued.
It is apparent from the above that the court is granted
wide discretion. The assets to be considered are not restricted to assets
acquired when the spouses were living together but includes those acquired
whilst on separation.
In casu, even by the plaintiff's evidence, the improvements
were completed during the subsistence of the marriage, and, so, such improvements
would still be considered in the distribution. Thus, the value of the asset to
be considered is as at the time of the dissolution of the marriage.
The parties made concerted effort to outdo each other on
the question of direct financial contributions. As already alluded to above,
all the circumstances of the case must be considered and not just one's direct
financial contribution.
On contributions, I am of the view that the plaintiff
contributed more. It may also be noted that from the time of separation, in
1982, the plaintiff remained solely responsible for maintaining the property
whilst the defendant engaged in other relations leading to the birth of two
children. She had more or less gone out of the matrimonial equation only to
resurface 22 years later. I am of the view that the circumstances, including
the conduct of the defendant, are such that the plaintiff deserves a greater
share in the property.
This will be a share of the property in its current state
and not its state as a core house….,.
In the result, the plaintiff will be awarded a 75% share in
the property in question whilst the defendant retains 25%. The plaintiff shall
be given the option to buy out the defendant failing which the property shall
be sold and the proceeds shared in their respective ratios. Accordingly, it is
hereby ordered that:-
1. The plaintiff is hereby awarded a 75% share in Stand Number
7113/14, also known as House Number 7113/14 Tsambakodzi Road, Zengeza 3,
Chitungwiza.
2. The defendant is hereby awarded a 25% share in the said
immovable property.
3. The plaintiff is hereby granted the option to buy out
the defendant in respect of her share in the property. In order to exercise
this option, the parties shall, within 14 days of this date, appoint a mutually
agreed estate agent to value the property; failing such agreement, one shall be
appointed for them by the Registrar of the High Court. The cost of valuation
shall be met by the parties as per their shares; that is - 75:25.
4. The plaintiff shall buy out the defendant's share within
6 months from the date of receipt of the valuation report unless the parties
agree on a longer term. Failing such payment, or a payment plan acceptable to
the defendant, the parties shall, within 21 days of such failure, appoint a mutually
agreed estate agent to sell the property to best advantage. Should they fail to
agree on an estate agent one shall be appointed for them by the Registrar of
the High Court.
5. The net proceeds of the sale shall be shared between the
parties as per their respective shares in the property.
6. Each party shall bear their own costs of
suit.
