Divorce
Action
CHITAKUNYE
J: The plaintiff and defendant married each other in terms of
customary law in 1997. On 14 April 2007 their marriage was solemnised
in terms of the Marriages Act 5:11. The marriage still subsists.
Their marriage was blessed with three children who are still minors.
On
8 March 2012 the plaintiff issued summons out of this court seeking a
decree of divorce and other ancillary relief.
In
her declaration plaintiff alleged that the marriage relationship has
irretrievably broken down to such an extent that there are no
reasonable prospects for its restoration to a normal marriage. The
grounds advanced for the breakdown included that: -
(1)
The parties are no longer compatible as the defendant constantly
verbally abuses the plaintiff;
(2)
As a result of the abuse, the plaintiff has moved out of the
matrimonial home and is staying with her uncle in Chitungwiza;
(3)
The defendant has failed to treat the plaintiff with the love and
affection that is expected between husband and wife.
(4)
Due to the foregoing the plaintiff has lost all love and affection
for the defendant and thus seeks a decree of divorce.
The
plaintiff claimed custody of the three children, maintenance for the
children, a share of assets of the spouses in terms of paras 9 and 10
of her declaration and an order that each party pays their own costs
of suit.
The
defendant's plea was to the effect that the marriage had not
irretrievably broken down. He still loved his wife. He went on to say
the plaintiff was facing psychological challenges which if resolved
would result in the marriage relationship normalising. He therefore
asked for the claim for divorce to be dismissed. In the event that
court granted the decree of divorce, the defendant's plea was to
the effect that he be awarded custody of the minor children and that
the immovable property be awarded to him as he is the one who
acquired the property before he met the plaintiff.
At
a pre-trial conference the parties agreed on some of the contentious
issues. The pre-trial conference minute shows that the parties agreed
that:- the marriage has irretrievably broken down; that the
plaintiff will have full household goods proved to be available on a
list to be filed by the defendant on 11 March 2013; except for the
motor vehicles which are subject to issue number A. 4.
The
contentious issues referred to trial comprised:-
1.
Whether it is in the best interest of the minor children of the
marriage for their custody to be awarded to either the plaintiff or
the defendant.
2.
What amount of maintenance would be reasonable and payable by the
non-custodian parent for the minor children of the marriage?
3.
What access rights should the non-custodian parent have to the minor
children of the marriage?
4.
What would be just and equitable distribution of the matrimonial
property of both movable and immovable; including motor vehicles as
listed in the paragraph (9) of plaintiff's declaration with the
amendment of the Toyota Rustler to read Mazda Rustler and as listed
in paragraph (15) of the defendant's plea and the immovable
properties as listed in paragraph (8) of the plaintiff's
declaration and as listed in paragraph (12) and (12.1) of defendant's
plea?
5.
Whether the plaintiff is entitled to post-divorce maintenance as a
lump sum maintenance payment?
On
the trial date the parties submitted a Deed of Settlement on further
issues. That Deed of Settlement provided that:-
-
IMMOVABLES
-
Stand
2477 Glen Lorne Township (7 Gaydon Crescent, Greystone Park.
Harare)
The
plaintiff shall obtain 50% of the net proceeds of the sale of the
property in execution subject to the agreement of the judgment
creditor in HC 1291/12; or
Alternatively,
the Defendant shall pay the Plaintiff US$ 90 000-00 on or before the
31st
July 2014.
-
Stand
622 Ruwa Township of Stand 2016 Ruwa Township
The
plaintiff shall subject to the writ of execution in HC1292/12 and any
mortgage bond thereof be entitled to 100% ownership of the property.
-
Stand
2439 Chikanga Phase 2, Mutare
The
Defendant shall on or before 31st
July 2014 pay the Plaintiff 50% of the value of the property provided
that the valuation shall be done by a valuer appointed by the
Registrar of the High Court from his panel of Valuators. The cost of
valuation shall be met by the Defendant.
-
Custody
-
Plaintiff
shall have custody of the two minor children namely:
-
Y
(born 27 March 2004)
-
U
(born 26 February 2010)
Provided
that the Defendant shall have access to the two minor children every
last weekend of the month from Fridays at 17:00 hrs to Sunday at
14:00 hrs.
-
Defendant
shall have custody of the minor child X (born 1 March 1998)
provided that she shall be free to visit Plaintiff by making her
own prior arrangements with the Plaintiff.
-
The
Defendant shall pay all the school fees for the three minor
children of the marriage and all related educational costs
including uniforms, sports attire and equipment up to tertiary
level.
The
issues that remained for determination comprised:-
-
Whether
or not the parties' marriage has irretrievably broken down?
-
Whether
or not Defendant must compensate Plaintiff for the movable property
sold in execution of a court judgment?
-
Whether
or not the Plaintiff is entitled to the motor vehicles as per
paragraph 10 of her declaration?
-
What
maintenance must Defendant pay for the two minor children in
Plaintiff's custody and plaintiff?
-
Whether
the Plaintiff is entitled to post divorce maintenance as a lump sum
maintenance payment?
1.
Whether or not the marriage has irretrievably broken down.
Section
5 (1) of the Matrimonial Causes Act, [Cap
5:13]
provides that:-
“An
appropriate court may grant a decree of divorce on the grounds of
irretrievable break-down of the marriage if it is satisfied that the
marriage relationship between the parties has broken down to such an
extent that there is no reasonable prospect of the restoration of a
normal marriage relationship between them”.
There
are basically two characteristics that court considers in
ascertaining whether a
marriage
has irretrievably down or not include
-
That
the marriage relationship is no longer in its normal state.
-
That
there is no reasonable prospect of restoration of the normal
marriage relationship between the parties.
From
the evidence adduced in court it is common cause that the marriage
relationship
between
the parties is no longer normal. In this regard both parties admitted
that due to some problems in their marriage they have been on
separation since February 2012. There has not been any meaningful
communication, if any, between them during this time. Even as they
came for trial they could not exchange greetings. Clearly that is not
the normal relationship in a marriage.
The
next point to consider is whether there is a reasonable prospect of
the parties
reconciling
and living a normal marriage relationship. The plaintiff's evidence
was to the effect that there is no prospect of the restoration of a
normal marriage relationship. She was insistent throughout her
evidence that she has lost all love and affection for defendant. She
alluded to the fact that they have been on separation for 31 months
and during that period they hardly communicated. She also alluded to
the fact that for those 31 months the defendant has done nothing to
show reformation or that he was genuine in his purported desire for
reunion. If anything the defendant's action in financially starving
defendant and children in her custody has only served to confirm that
they cannot restore a normal marriage relationship.
The
defendant on the other hand contended that the marriage can be
rehabilitated if
the
parties go for counselling and the plaintiff's problem of a
spiritual attack is attended to. The defendant could however not
state what steps, if any, he has taken to restore normal marriage
relationship.
In
Kumirai
v
Kumirai
2006(1) ZLR 134(H) at page 136 A-E, MAKARAU J (as she
then
was) had occasion to deal with a similar scenario and aptly put the
legal position as:-
“In
view of the fact that the breakdown of a marriage irretrievably is
objectively assessed by the Court, invariably, where the Plaintiff
insists on the day of the trial that he or she is no longer desirous
of continuing in the relationship, the Court cannot order the parties
to remain married even if the Defendant still holds some affection
for the Plaintiff. Evidence by the Plaintiff that he or she no longer
wishes to be bound by the marriage oath, having lost all love and
affection for the Defendant, has been accepted by this court as
evidence of breakdown of the relationship since the promulgation of
the Matrimonial Causes Act in 1985. So trite has the position become
that one hardly finds authority for it”.
The
learned judge went on to say that the defendant if he must succeed in
his assertion
that
the marriage has not broken down irretrievably must adduce evidence
of such life in the marriage. It is for the defendant to satisfy
court that the marriage has still has some life in it. In order to do
this the defendant must adduce evidence showing that after the
issuance of the summons the parties have found each other and are now
living in the manner of husband and wife. A sheer hope that if both
parties receive counselling the marriage could be resuscitated is not
enough. In casu,
the defendant has harboured this hope ever since the summons was
issued but he has not taken any positive steps for the realisation of
that hope. It is clear to me that defendant is not serious in his
contention that the marriage can be revived. Clearly he just won't
accept the reality of a marriage that has broken down irretrievably
On
this issue therefore I find that the marriage has irretrievably
broken down and a
decree
of divorce must be granted.
2.
Whether or not Defendant must compensate Plaintiff for the movable
property.
In
para 10 of her declaration plaintiff outlined the list of movable
property she wished to be awarded. The movable property includes
household goods and motor vehicles. The defendant's response was to
the effect that plaintiff can have the household goods. He however
objected to plaintiff being awarded all the motor vehicles. He said
plaintiff can have the Toyota Prado to keep as a family vehicle
As
misfortune would have it the household goods the defendant had
conceded the plaintiff could have were later on attached by the
Sherriff and disposed off to meet a judgement debt in the case Brent
Oil Africa (Proprietary) Limited v
Hughber Petroleum (Private) Ltd
and
Hubert Nyambuya HC1292/12.
It
is common cause that Hughber Petroleum (Pvt) Ltd. was a family
business in which both the plaintiff and defendant were shareholders.
According to the defendant the initial shareholding was 70% for
defendant and 30% for plaintiff. Later that was changed and plaintiff
was left with 10%. Other persons joined the company.
The
plaintiff argued that she had nothing to do with the debt incurred by
the company and so she should be compensated in respect of the sold
property. From the parties pleadings the household goods the
defendant had conceded the plaintiff could have comprised: - 3 double
beds, 1 bedroom suite, 15 blankets 2x32 inch television sets, 1 flat
screen television set, 1 gold 4 piece lounge suite, I mushroom 10
piece dining room suite, kitchen utensils, 1 microwave, 1 deep
freezer, 1 upright fridge, I galas room divider and a washing
machine. The goods attached and sold by the Sheriff comprised: 1 x 10
piece dining room suite; 1 x double door and freezer; maroon lounge
suite; 1 x TV set; 1 x headboard;
Unfortunately
not all items sold are legible from the notice of seizure and
attachment filed as part of the defendant's bundle of documents.
It
is in respect of those items that the defendant had conceded that she
may take but which were subsequently sold that the plaintiff wanted
to be compensated a sum of $ 20 000-00. No values were attached for
each individual item. It was thus not clear how the plaintiff arrived
at a globular sum of $20 000. It is my view that where one is seeking
compensation, it is incumbent upon them to justify/prove the quantum
being claimed. Court must be satisfied as to how such a sum was
arrived at. Even if court were to come to a lesser figure such must
be based on the evidence adduced on how such a sum can be arrived at.
In
his closing submissions counsel for the plaintiff submitted that the
issue of compensation for property sold in the sale in execution was
no longer contentious as the defendant had made material concession
that he was willing to compensate the plaintiff for the movable
property that was sold in execution pursuant. The defendant's
counsel on the other hand contended that this should not be ordered.
As already alluded to above, the value of the exact property sold in
execution was never proved. The defendant's concession alluded to
by the plaintiff's Counsel was to the effect that if I had the
money I would compensate. He did not say he would pay $ 20 000-00 as
compensation or that he agreed with the plaintiff's global value.
Whilst
it is true court has wide discretion to ascertain what would be
reasonable value, I am of the view that such discretion can only be
exercised where adequate evidence has been placed before court. Even
a robust approach would not do justice as the approximate value of
the individual goods was never stated. The condition of the goods was
equally not disclosed and so it will be a dangerous guessing game for
court to try to give value to the items when the parties themselves
did not do so. I thus find that the plaintiff has not proved the
value of compensation in respect of the goods the defendant had said
she could have.
It
may also be argued that the assets court is enjoined to distribute
are assets of the spouses as at the time of distribution. In this
case the goods in question were sold in execution of a court
judgement. This is unlike a situation where it can be said the
defendant fraudulently incurred the debt so as to deprive plaintiff
her dues.
If
as is common cause the objective of distribution is to place the
spouses in the position they would have been in had a normal marriage
relationship continued between them, it follows the spouses would not
have the goods in question. Any offer to compensate would thus be out
of sheer goodwill and not out of a legal obligation. Clearly the
circumstances obtaining are such that it would not be appropriate to
order defendant to compensate plaintiff in this regard.
3.
Whether or not plaintiff is entitled to the motor vehicles as per
paragraph 10 of her
declaration.
In
para 10 of her declaration, the plaintiff asked to be awarded the
following motor vehicles- Toyota Prado, Toyota Hilux vehicle, Volvo
motor vehicle, Toyota Camry Motor vehicle. In his plea the defendant
stated that the plaintiff can have the Toyota Prado as it is a family
vehicle, the Toyota Hilux truck belongs to the farm and so she cannot
have it, the Volvo Motor vehicle is a company vehicle used by the
Commercial director, the defendant uses the Toyota Camry as his
personal car.
The
evidence led in court showed that the plaintiff had sold the Toyota
Prado for her benefit and so it is no longer in issue. The defendant
now stated that the Toyota Hilux was now for his personal use, the
Toyota Camry which he had originally said was his personal car for
use was now said to have been allocated to a company employee on a
vehicle purchase scheme. The Volvo and VW Polo vehicles were still
allocated to company employees. A Mazda Rustler was said to be a
family car.
It
was common cause from the evidence that all the motor vehicles
including those plaintiff said defendant could retain were registered
in defendant's name and not in the company's name. The defendant
said that this was because he had a contract to import vehicles with
Kheng Keng Auto Company of Singapore. The vehicles were thus imported
in his name. It is important to note that whilst he may have such a
contract, I did not hear it argued that the contract forbade him from
changing the vehicles into the names of the company once imported. A
couple of years have passed since the vehicles were imported but the
vehicles are still in the defendant's name. It is clear to me that
defendant was not being truthful on the ownership of the motor
vehicles. Yes the company may have paid for the purchase of the
vehicles but they were meant for the defendant. This is why for
instance defendant was able to turn the farm vehicle Toyota Hilux for
his personal use and the Toyota Camry which had been for his use to
an employee. He was in a position to do as he pleased with the motor
vehicles because they were in his name.
I
am of the view that in order to do justice in the distribution of the
assets of the spouses, the motor vehicles must be views as the
defendant's. If the vehicles belonged to a third party nothing
would have stopped that party from claiming such ownership. Indeed
the defendant could easily have called those he said were the owners
to come and testify. It is defendant who contended that though the
vehicles were registered in his name they were not his and so it was
upon him to call the entity or persons he claimed owned the vehicles.
I
thus conclude that plaintiff is entitled to a distribution of the
vehicles as per her claim. Should the vehicles not be available at
the time of this order the defendant must provide similar vehicles or
their value as assessed by a motor vehicle dealer mutually agreed to
by the parties or one appointed by the registrar of the High Court.
4.
What maintenance must defendant pay for the two minor children in
plaintiff's
custody
and plaintiff?
The
plaintiff's claim as per summons and declaration was for $3000-00
for the maintenance of the three minor children per month and school
fees for the three children as and when required by the school until
the last child attains the age of 18 years or becomes self
supporting whichever occurs first. A perusal of the pleadings shows
that there was no amendment to the pleadings to incorporate a
maintenance claim for the plaintiff.
The
two Court Orders by this Court which were referred to during the
trial, pertain to issues to do with the children.
For
instance the order by consent dated 21 December 2012 in HC14277/12 by
GUVAVA J states, in paragraphs 4 and 5, that-
“The
respondent shall provide applicant with necessary fuel to assist in
driving the children to school; the respondent shall deposit $150-00
per week into the Applicant's Bank Account for groceries and daily
needs of the minor children”.
The
order by MAWADZE J dated 9th
July 2013 in HC 5381/13 again pertains to the children. It is in fact
on the outstanding school fees for U and third term fees.
It
is only a maintenance order by a maintenance court at Harare
Magistrates Court which states that the respondent was to pay $500-00
per month to the applicant and to also pay her university tuition
fees with effect from December 30, 2012 until varied or until
plaintiff is divorced or remarries. It was clearly an order to
operate pending divorce and not post divorce.
At
a pre-trial conference held on 4 March 2013, the absence of a claim
for post divorce maintenance seems to have been noted hence under
admissions para 9 indicates that the defendant has given his consent
to the filing of an amendment by the plaintiff for the pleadings to
accommodate issue number A.5 and the parties were to thereafter file
further summaries of evidence to cater for the envisaged amendment.
Issue number A.5 referred to reads as follows: 'whether the
plaintiff is entitled to post-divorce maintenance as a lump sum
maintenance payment?'
The
proposed amendment was duly filed but on the trial date counsel for
the plaintiff indicated that they were no longer seeking the
amendment. The proposed amendment had now incorporated other aspects
beyond what pertained to issue A.5. As a result of the non pursuance
of the amendment it means that before this court there is no claim
for post-divorce maintenance by plaintiff. The maintenance claim
before me pertains to the two children in plaintiff's custody.
I
have raised the above points because Counsel in leading evidence and
in their closing submissions seemed oblivious to the fact that the
amendment that would have brought in a claim for maintenance for
plaintiff had not been made. It is trite law that a party should
stand or fall by their pleadings. In such a situation a party may
only get what the other party is gratuitously offering.
The
maintenance claim properly before me pertains to the two minor
children in plaintiff's custody, namely U (born 27th
March 2004) and Y (born 26th
February 2010).
Section
7(1) (b) of the Matrimonial Causes Act provides that:-
“In
granting decree of divorce …… or at anytime thereafter, an
appropriate court may make an order with regard to the payment of
maintenance, whether by way of lump sum or by way of periodical
payments, in favour of one or other of the spouses or of any child of
the marriage”.
In
casu
the principle of the defendant paying maintenance is accepted. The
only issue is on the quantum. In determining the quantum of
maintenance to be paid court is enjoined to consider the living
standard of the responsible person. Where, as in this case, parties
were in a marriage, court considers the standard of living that the
family enjoyed prior to separation. The ability of the responsible
person must be considered.
From
the evidence adduced it is common cause that plaintiff and defendant
enjoyed a high standard of living. Their children were used to that
lifestyle. This was when things were going on well for the family
business. However, with the disintegration of the marriage, so came
the collapse of the family business. It was not clear as to which
came first, what is certain is that the family business has hit hard
times resulting in the failure to meet its legal obligations. The
consequences were the sale in execution of family assets including
attachment of immovable properties. In such circumstances it is not
wise to use the high standard of living during the good times to
assess defendant's ability.
I
am of the view that in as far as the defendant will continue meeting
the children's educational requirements a sum of $2000-00 per month
for the 2 children is beyond his means. The defendant's means have
plummeted. He indicated that he now relies on rentals from his
brother's house in Gweru and limited income from consultancy jobs
he gets here and there. It was in that light that he offered $300-00
for the two minor children in addition to meeting their educational
requirements
His
offer of $300-00 per month for the two minor children is inadequate.
I am of the view that a sum of $200-00 per child per month should be
adequate for the basic needs of the children in addition to defendant
paying for the children's educational needs. The plaintiff must
also contribute in her own way to the children's upkeep.
5.
Whether the plaintiff is entitled to post divorce maintenance as lump
sum
maintenance
payment.
In
view of the finding that there is in fact no proper claim for
maintenance by the plaintiff before me it follows that lump sum
payment cannot be ordered in respect of plaintiff's claim. The
plaintiff argued that the lump sum payment will enable her to start a
business venture and be weaned off the defendant. The sum she seeks
is thus a sum to kick start a business. I am of the view that the
lump sum payment must be within the defendant's ability. There is
thus need to show the defendant's ability to raise such a sum
outside the payments he has already offered in settlement of the
parties proprietary interests. In casu,
no such evidence was led serve to argue that because he made offers
to pay $90 000-00 in lieu of plaintiff's proprietary interests in
the parties' Gaydon Crescent immovable property he is therefore
able to raise $20 000-00 for the lump sum payment. In as far as this
lump sum payment was in respect of maintenance for plaintiff I have
already found that no proper claim was before me and so such a claim
cannot succeed.
Accordingly
it is ordered that:-
-
A
decree of divorce be and is hereby granted.
-
The
claim for compensation in respect of movable property sold in
execution is hereby dismissed.
3.1
The plaintiff is hereby awarded the following motor vehicles or their
equivalent
value
as shall be assessed by a mutually agreed motor vehicle dealer/car
sales
agent
or, failing such agreement, one appointed by the registrar of the
High
Court:-
-
Toyota
Prado(which she already took and disposed off);
-
Toyota
Hilux Truck;
-
Volvo
Motor vehicle;
-
Toyota
Camry Motor vehicle.
3.2
Should the motor vehicles not be available at the time of this order,
the defendant
shall
provide similar vehicles or their value as assessed in clause 3.1
above
within
a period of 30 days from the date of receipt of the
assessment/valuation
report.
4.
The defendant be and is hereby ordered to pay maintenance in respect
of the two
minor
children in plaintiff's custody in the sum of $200-00 per month per
child
until
each child attains the age of 18 years or becomes self-supporting
which ever
is
first. This shall be in addition to providing educational
requirements as per this
court's
order of 17 September 2014 attached hereto.
5.
Other matters as between the parties shall be governed in terms of
this court's order
granted
on the 17th
September 2014 with the consent of the parties, which order is
hereby
incorporated as part of this order.
-
Each
party shall bear their own cost of suit.
Muskwe
& Associates,
plaintiff's legal practitioners
C.
Nhemwa & Associates,
defendant's legal practitioners
