CHITAKUNYE
J:
The
plaintiff and defendant were married in terms of the Marriages Act,
[Chapter
5:11]
on 7 September 1985. The marriage subsists. Their marriage was
blessed with two children who are both now adults.
On
7 June 2013 plaintiff issued summons out of this court for the
dissolution of the marriage and a distribution of both movable and
immovable properties owned by the parties. The plaintiff alleged that
the marriage relationship has irretrievably broken down to such an
extent that they can no longer live together as husband and wife. The
factors of the breakdown included that:-
(a)
The defendant has improperly associated with other women during the
subsistence of the marriage;
(b)
The defendant has failed to treat the plaintiff with respect as
expected between husband and wife;
(c)
The parties have not slept together as husband and wife for more than
six years;
(d)
The defendant has physically and emotionally abused the plaintiff.
The
defendant in his plea conceded that the marriage has indeed
irretrievably broken down albeit for reasons different from those
advanced by the plaintiff. He further conceded that the parties have
not shared bed as husband and wife for more than six years preceding
the institution of this case.
In
his counter claim, defendant prayed for a decree of divorce and an
order for the distribution of assets of the spouses as per paragraphs
6, 7 and 8 of his counter claim.
From
the aforementioned it is clear that both parties are of the firm view
that there are no reasonable prospects of a restoration of a normal
marriage relationship between them.
At
a pre-trial conference parties settled on almost all the issues
except on the issue of the distribution ratio for the matrimonial
immovable property, namely, No. 9 Harare Drive, Logan Park, Hatfield,
Harare.
The
parties agreed that:-
1.
The marriage has irretrievably broken down to the extent that there
are no prospects of the parties living together as husband and wife;
2.
The plaintiff can have 50 per cent of a certain undeveloped piece of
land known as Stand Number 24273 Ruwa Township of York Estates;
3.
The plaintiff contributes 50 per cent of the amount owing on the
property referred in paragraph 2 above;
4.
The parties have already shared the movables between them; and
5.
That each party shall bear his/her own costs.
The
only issue referred to trial was:-
What
is a fair distribution of the matrimonial home, known as Number 9
Harare Drive, Logan Park, Hatfield, Harare.
The
plaintiff claimed a 50 per cent share in the matrimonial property
whilst defendant offered 20 per cent.
At
the pre-trial conference defendant upped his offer to 35 per cent
just so that the parties can settle otherwise his unequivocal offer
was only 20 per cent.
The
plaintiff gave evidence and tendered documentary evidence in support
of her claim for a 50 per cent share. The defendant thereafter gave
evidence and also tendered into evidence documentary evidence in
support of his contention that he deserved at least 65 per cent share
of the property whilst plaintiff gets 35 per cent at the most.
The
evidence by the parties confirmed that the parties married in 1985 in
terms of the Marriages Act [Chapter
5:11].
At the time of marriage plaintiff was employed as a clerk typist at
ZESA whilst defendant was employed at MBCA. Parties were not agreed
on the capacity defendant was employed as. Plaintiff alleged he was a
bank clerk whilst defendant contented he was a supervisor. Upon
marriage the couple moved into rented accommodation in Glen Norah.
After about a year defendant obtained a mortgage bond from his
employer and bought a house in Kambuzuma. The house was however
registered in the name of MBCA Nominees as required by his employer.
After staying in the Kambuzuma house for some time they sold that
house and defendant obtained another loan from his employer to buy
another house in Craneborne. The Craneborne property was again
registered in the name of MBCA Nominees. Later the Craneborne
property was sold and the parties bought a property in Mabelreign.
The Mabelreign property was registered in the joint names of the
parties. The Mabelreign property was later sold and proceeds used to
pay off the loan and to deposit for the current matrimonial house,
namely, Number 9 Harare Drive, Logan Park, Hatfield, Harare.
This
property is registered in defendant's name only.
According
to defendant he registered this property in his name only because
plaintiff had let him down regarding payment of her portion of loan
repayments leading to the accumulation of arrears on the Mabelreign
property. This is what led to the parties disposing of the Mabelreign
property. The plaintiff, on the other hand, alleged that defendant
convinced her that as he was in the process of looking for a new
employer, the prospective employer would take up the mortgage if it
was in his name only and this would be cheaper and easier to repay
for them. As a result of this she agreed that the property be
registered in defendant's name only.
It
may also be noted that the parties were not agreed as to whether
plaintiff's payslip was used when obtaining loans to purchase the
Kambuzuma and Craneborne properties. Plaintiff argued that her pay
slip was used whilst the defendant contended otherwise. He however
conceded that on the Mabelreign property plaintiff's payslip was
used.
The
parties' evidence on the proposed sharing ratio was mostly based on
what each said they directly contributed towards the purchase price
of the properties. For instance defendant contended that as he bought
the first two properties using loans from his employer and all loan
repayments were made by him those properties were his. The plaintiff
on the other hand argued that she also made direct contributions
towards those properties.
As
regards the current property parties agreed that the deposit of about
half its purchase price came from the proceeds of the Mabelreign
property which was jointly owned. In that way it was argued that
plaintiff contributed directly as her 50 per cent share in the
Mabelreign property went towards the purchase price of the Logan park
property. Apart from that she also made further contributions towards
improvements to the property.
It
is common cause that throughout the 29 years of their marriage both
parties were gainfully employed. Plaintiff progressed from being a
clerk typist to managerial positions. Defendant equally advanced in
his employment. Their earnings progressively increased and as of now
plaintiff was said to be earning more than the defendant whereas in
the beginning she was earning less. That improvement in earning
translated to improvement in their standard of living hence their
moving house from high density areas to low density areas. It is in
that progression that they cannot agree that each contributed to that
improvement and hence deserves what they are asking for.
The
principles governing the distribution and apportionment of assets of
the spouse at the time of the dissolution of a marriage are found in
section 7 of the Matrimonial Causes Act, [Chapter
5:13];
Section
7(1) thereof states that: -
“Subject
to this section, in granting a decree of divorce, judicial separation
or nullity of marriage, or at any time thereafter, an appropriate
court may make an order with regard to:-
(a)
division, apportionment or distribution of assets of the spouses,
including an order that any asset be transferred from one spouse to
the other…”
The
factors to be considered when determining how to apportion or
distribute assets of the spouses are laid out in section 7(4) in the
following manner:-
“In
making an order in terms of subsection (1) any appropriate court
shall have regard to all the circumstances of the case, including the
following:-
(a)
The income –earning capacity, assets and other financial resources
which each spouse and child has or is likely to have in the
foreseeable future;
(b)
The financial needs, obligations and responsibilities which each
spouse and child has or is likely to have in the foreseeable future;
(c)
The standard of living of the family, including the manner in which
any child was being educated or trained or expected to be educated or
trained;
(d)
The age and physical and mental condition of each spouse and child;
(e)
The direct or indirect contribution made by each spouse to the
family, including contributions made by looking after the home and
caring for the family and other domestic duties;
(f)
The value to either of the spouses or to any child of any benefit,
including a pension or gratuity, which such spouse or child will lose
as a result of the dissolution of the marriage;
(g)
The duration of the marriage;
and
in so doing the court shall 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 between the spouses.”
It
is clear from the above that when determining what would be a fair
and equitable distribution of the assets of the spouses, court is not
hamstrung by direct contributions by each spouse. Court is enjoined
to look at a wide spectrum and endeavour as far as is reasonable and
practicable and, having regard to their conduct, is just to do so, to
place the spouse in the position they would have been in had a normal
marriage relationship continued between the spouses.
In
fact in terms of section 7(4)(e), when considering contributions both
direct and indirect contributions must be taken into account. As
aptly noted by ZIYAMBI JA in Usayi
v Usayi
2003 (1) ZLR 684 (SC) at pages 687 H to 688 D when she said that:-
“Mr.
Gijima, who appeared for the appellant, was persistent in his
submission, that the respondent, having made no financial
contribution to the acquisition of the house, was not entitled to an
award of 50 percent of the sale price. Having regard to the
provisions of s 7(4) of the Act, this submission is unsound. The Act
speaks of direct and indirect contributions. How can one quantify in
monetary terms the contribution of a wife and mother who for 39 years
faithfully performed her duties as wife, mother, counsellor, domestic
worker, housekeeper, day and night, nurse for her husband and
children? How can one place a monetary value on the love,
thoughtfulness and attention to detail that she puts into all the
routine and sometimes boring duties attendant on keeping a household
running smoothly and a husband and children happy? How can one
measure in monetary terms the creation of a home, and the creation of
an atmosphere therein from which both husband and children can
function to the best of their ability? In the light of these many and
various duties, how can one say, as is often remarked: “throughout
the marriage she was a housewife. She never worked”? In my
judgement, it is precisely because no monetary value can be placed on
the performance of these duties that the Act speaks of the “direct
or indirect contribution made by each spouse to the family, including
contributions made by looking after the home and caring for the
family and any other domestic duties.”
Section
7(4)(e) recognises other contributions made by spouses in a marriage
and is not restricted to direct financial contribution.
In
casu,
it is an accepted fact that each spouse contributed to the needs of
the family throughout the 29 years of their marriage. The levels of
contribution may have differed but that is as it should be. It is
impossible to quantify contributions by each spouse over 29 years of
marriage. Surely unless one was keeping an accurate record such would
not be an easy task. In any case as already alluded to there are some
contributions to the welfare of the family that are not easy to
quantify.
On
the property in question defendant conceded that plaintiff did
directly contribute to some of the improvements effected. His only
query being on how much that should translate to.
I
am of the view that where parties have been married for a long time,
as in this case, the issue of direct contribution whilst relevant
should not take the centre stage. Instead parties should look at
other features such as the needs and expectations of the parties as
they go out of the marriage. Their needs and expectations should
carry more weight than direct financial contribution.
In
casu,
I am of the view that the parties family was provided for by both
parties with each party doing their best given their circumstances.
For the 29 years I did not hear defendant to seriously suggest
plaintiff did not play her role as wife and mother of the house well.
Equally plaintiff did not allude to defendant failing in his
husbandly and fatherly role in the family. That being the case it
would be an act of great injustice to ask the parties to each go out
of the marriage with what they directly contributed financially. I am
of the view that whatever each party was doing was for the betterment
of the family and each party benefited immensely from the industry
and thrifty of the other as each played their role in raising the
standard of the family. Indeed for the marriage to have lasted that
long suggests each played their role responsibly.
In
an endeavour to as far as is reasonable and practicable, place the
spouses in the position they would have been in had a normal marriage
relationship continued, I am of the view that each party should be
awarded a 50 per cent share in the matrimonial home. The duration and
the industry and thrifty of each spouse during the 29 years is such
that only an equal share for each spouse would meet the justice of
the case. This is a case where court is enjoined to exercise its
discretion in terms of section 7(1) of the Act and order the transfer
of half of the share in defendant's name to plaintiff.
Accordingly
it is hereby ordered that:-
1.
A decree of divorce be and is hereby granted.
2.
The plaintiff is hereby awarded a 50 per cent share in a certain
undeveloped piece of land known as Stand Number 24273 Ruwa Township
of York Estates.
3.
The plaintiff shall contribute 50 per cent of the amount owing on the
above Ruwa property referred to in para (2) above.
4.
The plaintiff is hereby awarded a 50 per cent share in the
Matrimonial property known as Number 9 Harare Drive, Logan Park,
Hatfield, Harare with the defendant being awarded the other 50 per
cent in the said property.
5.
The parties shall agree on a value of the property within 14 days
from the date of this order failing which they shall' within 14
days, appoint a mutually agreed valuer to do the valuation.
6.
Should the parties fail to agree on a valuer the registrar of the
High Court shall appoint one such valuer from his list of valuers
within 14 days of being advised of the failure by the parties to
agree on a valuer.
7.
The cost of the valuation shall be borne by the parties in equal
shares.
8.
The defendant is hereby granted the first option to buy out plaintiff
in respect of her share as valued within six months from the date of
receipt of the report of valuation.
9.
Should the defendant fail to buy out plaintiff or make a payment plan
acceptable to plaintiff within the period stated above, plaintiff
shall be eligible to buy out defendant's share within three months
from the date of defendant's failure.
10.
Should plaintiff fail to buy out defendant or make a payment plan
accepted to defendant within the stipulated period, the property
shall be sold to best advantage by an estate agent mutually appointed
by the parties within 14 days of such failure or one appointed by the
registrar of the High Court. The parties shall share the net proceeds
as per their respective shares awarded above.
11.
Each party shall bear their own costs of suit.
Mtetwa
& Nyambirai,
plaintiff's legal practitioners.
Mundia
&Mudhara,
defendant's legal practitioners.
