Divorce
action
CHITAKUNYE
J:
The
plaintiff and defendant were married on 18 December 1993 at Harare in
terms of the Marriages Act [Chapter
5:11].
The marriage still subsists. Their marriage was blessed with four
children.
On
27 September 2007, the plaintiff issued summons out of this court
seeking a decree of divorce and other ancillary relief. The plaintiff
alleged that the marriage has irretrievably broken down to such an
extent that there is no reasonable prospect of restoration to a
normal marriage relationship in that:-
1.
The plaintiff has lost all love and affection for the defendant;
2.
The parties have lived separate lives for most part of their marriage
but formally separated in December 2005 and have not lived as man and
wife ever since.
The
plaintiff thus sought an order for:-
1.
For a decree of divorce;
2.
That defendant be awarded custody of the minor children of the
marriage with plaintiff enjoying rights of access by prior
arrangement with defendant;
3.
That issues of maintenance be dealt with by the Magistrate Court; and
4.
That issues of movable and immovable property should not arise as
parties had agreed that their property would be acquired out of
community.
The
defendant in her plea conceded that the marriage has irretrievably
broken down and so a decree of divorce should be granted. She
accepted to be awarded custody of the minor children. She however
denied that the property should not be dealt with. In her
counter-claim defendant contended that there should be a division and
distribution of assets of the spouses as per her counter-claim and
that maintenance be determined by this court.
At
a pre-trial conference held on 19 October 2012 the parties agreed
that:-
1.
That the marriage has irretrievably broken down and that there are no
reasonable prospects for the restoration of a normal marriage
relationship as between the parties.
2.
Subject to provisions of paragraph 2.1 below, the plaintiff shall be
solely responsible for the payment of school fees in respect of all
the minor children, namely:-
(a)
E, born on the 4th
June 1996;
(b)
F, born on the 22nd
September, 1998;
(c)
G, born on the 25th
September 2002; and
(d)
H, born on the 7th
February, 2005.
1.1
The school fees payable by the plaintiff shall be pegged to fees
charged at the Dominican Convent, Harare, at any given time.
1.2.
In the event that the children are enrolled at a school whose fees
exceed those of Dominican Convent, Harare, the defendant shall be
responsible for such excess.
3.
That the defendant shall be responsible for the day to day needs of
the minor children.
4.
That the defendant shall have custody of all the minor children of
the marriage with the plaintiff having reasonable rights of access on
alternate weekends, half of each school holiday and on alternate
public holidays.
The
issues referred to trial comprised:
1.
Who caused the breakdown of the marriage by his/her conduct?
2.
If he/she did, does such conduct constitute gross marital misconduct
deserving of censure in the distribution of the matrimonial assets?
3.
What constitutes assets of the marriage?
4.1.
Has the plaintiff registered matrimonial assets in the names of third
parties? If he has, does this constitute gross marital misconduct
deserving of censure?
4.2
What would constitute fair and equitable distribution of the parties'
assets, taking into account the parties' conduct, direct and
indirect contributions, their needs including the children's needs?
5.
What would be a just order of costs?
The
plaintiff gave evidence after which the defendant gave evidence. The
defendant called one witness in support of her case, a Mrs Dhora
Muyengwa.
Though
at the beginning of the trial a lot seemed at stake in the sense of
being disputed, as the trial progressed important concessions were
made such that only one or two issues remained contentious.
From
the evidence adduced it was common cause that the parties' marriage
was essentially an unhappy one. The marriage was characterised by
such problems as impotence on the part of plaintiff thus culminating
in frustrations between the parties, an unsettled lifestyle as
plaintiff moved regularly by virtue of his job and also in changing
employment. Due to the strained relationship defendant was on a
number of occasions sent back to her parents' home only to be
enticed back to the plaintiff. The marriage life as told by the
parties makes sad reading. Naturally this affected their working life
as the defendant would resign from her employment to join her husband
where he will have moved to only to enjoy family life for a brief
period before the usual problems between them resurfaced.
The
parties eventually separated for good in February 2006 with the
defendant being taken back to her parents' home again and never to
come back as had become the norm. The parties have thus not lived
together as man and wife since February 2006. The defendant has been
at her parents' home with the youngest child. I am thus convinced
that the marriage has indeed irretrievably broken down with no
prospects of restoration to a normal marriage relationship. A decree
of divorce should thus be granted.
In
terms of section 7(1) of the Matrimonial Causes Act [Chapter
5:13]
in granting a decree of divorce this court is empowered to make an
order in regard to the division, apportionment or distribution of
assets of the spouses, including an order that any asset be
transferred from one spouse to the other and to make an order with
regard to the payment of maintenance in favour of one or other of the
spouses or child of the marriage.
Subsection
7(4) of the Act enjoins court to have regard to all the circumstances
of the case in determining the issues in subsection (1). Some of the
factors are outlined in section 7(4) (a) to (g).
These
encompass the needs and expectations of the spouses and children and
also the duration of the marriage. The subsection goes on to state
that -
“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.”
I
believe that it was in an endeavour to achieve the above that parties
settled a number of issues at the pre-trial conference.
Unfortunately, as at the time of trial the plaintiff had not been
complying with some of the agreed terms.
Under
cross examination the plaintiff conceded that he was bound by the
rate of payment for the children's education as agreed at the pre-
trial conference which was pegged at the fees charged by Dominican
Convent in Harare. He thus should comply with this by reimbursing the
defendant all the amounts she paid which were for his account from
the date of the pre-trial conference as per their agreement.
On
the issue of movables the plaintiff conceded that defendant should
provide him with the list of items she wanted and she should get
these. The list was provided. On the motor vehicles, after a
protracted cross examination, the plaintiff offered to buy defendant
a motor vehicle worth USD7000- 00. The defendant indicated that in
view of the history of plaintiff's default on what he would have
agreed to she would rather she was given the money and after buying
the vehicle she would provide the receipt as proof of the price paid.
This was to be done by 31st
December 2014. It is my view that the defendant's suggestion is the
most welcome as she will be the owner of the motor vehicle and so
must be given the opportunity to buy a car of her choice as long as
it is within the sum provided.
The
remaining contentious issue pertained to whether or not the parties
acquired any immovable property and, if so, how such should be
shared.
The
plaintiff alleged that the parties never acquired any immovable
property and so there is nothing to share. The defendant on the other
hand contended that the plaintiff acquired three immovable properties
but he registered the properties in the names of third parties. These
comprised Flat 315, Chinamano Heights, Harare; No. 6 Angela Close,
Chisipite, Harare and Stand 373 Uplands Township, Waterfalls, Harare.
The
defendant contended that the flat was bought by her husband whilst
they were in the United Kingdom. She was surprised when she came to
live in the flat to find that it had been registered in plaintiff's
sister's name, a Mrs. Majaji. She nevertheless lived in the flat
without paying any rentals. After some time the plaintiff told her
they were to move to No. 6 Angela Close, Chisipite, Harare. She also
believed this property had been bought by her husband whilst they
were in the United Kingdom. In this regard she had heard plaintiff
talking about it and had in fact seen the plaintiff with documents
pertaining to the purchase of this property. As is common cause this
property was registered in the name of the plaintiff's mother. The
defendant again said when they were about to move to this house she
is the one who went and gave notice to the tenants who were in the
house. To her knowledge the plaintiff's mother could not have the
money to purchase that property. She also disputed the plaintiff's
assertion that his other siblings paid for the house in addition to
what the mother had paid. In any event the mother resided in the
rural areas. It was not disputed that it is only the plaintiff who
has resided in this house since they moved in and no other sibling.
In
spite of having indicated that he would call oral evidence and tender
documentary evidence on how this house was acquired, the plaintiff
did not do so. It thus remained his unsubstantiated word that the
house was bought by his mother from her inheritance and contributions
from plaintiff's siblings in the United Kingdom. I am inclined to
believe the defendant's version that it is the plaintiff who bought
this house and opted to register it in his mother's name for his
own convenience.
The
evidence on Stand 373, Midlands Township 3 of Uplands sub-division of
A of Waterfalls, exposed the plaintiff as not credible at all.
The
plaintiff alleged that the property was acquired by Python Security;
a company of which he is not part of. This company was formed by his
brother Zivanai Emmanuel Katsande and his sister Angela Majaji (nee
Katsande). In this regard when the agreement of sale was entered into
Zivanai was not present and so he asked the defendant to sign the
document. In his summary of evidence he indicated he will tender
documentary evidence to prove this point.Unfortunately in his viva
voce
evidence such documentary evidence was not forthcoming despite the
fact that up to the close of plaintiff's case he was legally
represented. When confronted with the agreement of sale under cross
examination the plaintiff could not explain away the fact that the
agreement of sale cites the defendant as the purchaser represented by
Zivanai Emmanuel Katsande. Thus according to this agreement Zivanayi
was present and not as the plaintiff had stated that Zivanai was not
present hence the defendant signed the document. The company which
the plaintiff said was in fact the purchaser is no where stated in
that agreement of sale. If the property was being bought by the
company surely such should have been stated. The plaintiff could not
explain why Zivanai Katsande, as owner of Python Security Company,
could make the mistake of endorsing defendant as purchaser of the
property when the true purchaser was his company. As it is even the
seller Mrs Muyengwa professed ignorance of Python Security being the
purchaser. She categorically stated in her evidence that the
purchaser was the defendant as is amply stated on the document.
The
plaintiff referred to a Deed of Cession as proof that the property
belonged to the company.
The
circumstance under which that deed of cession was signed by defendant
was clearly explained by defendant in her evidence. She alluded to
the fact of being forced by plaintiff to sign the document. It is
apparent that the plaintiff knew that the property had been bought in
the defendant's name hence the need for defendant to cede her
rights and interest in the property to Python Security Company.
The
deed of cession was only entered into on the 28th February 2005
whereas the agreement of sale had been entered into on 19th November
2002. If at all a mistake had been made in reflecting defendant as
purchaser instead of Python Security, one would expect such a mistake
to have been corrected much earlier. As the plaintiff conceded under
cross examination the so called deed of cession is a fake document
not reflecting the truth on the purchaser of the property. What is
apparent to me is that the plaintiff would use any means to deny
defendant a share in the immovable property.
As
with evidence on other properties, the plaintiff had intimated that
Zivanai would be called to testify on the purchase of this property
but he was never called. So it remained the plaintiff's story
against the defendant and the seller's story. I am again inclined
to believe the defendant's version as she was consistent and
steadfast in her evidence.
From
the tenure of the evidence by the parties I got the distinct
impression that it is true that plaintiff had been very secretive
about his transactions and it is probable he did not want his wife to
know about his acquisitions. Unfortunately for him he could not
successfully hide away the Uplands property.
I
am of the view that the Uplands property be awarded to defendant. The
plaintiff conceded as much on this point under cross examination.
The
defendant contended that the plaintiff committed acts of gross
marital misconduct throughout the marriage and so should be penalised
by awarding costs against plaintiff on a higher scale.
After
a careful analysis of the evidence before me I am of the view that
the marriage in question was bereft of the bliss normally expected in
a marriage. The plaintiff's conduct did not help matters at all. He
appeared intent on denying the defendant an equitable distribution of
family assets only to give in after cross examination. Even on
aspects to do with children's school fees he posed unnecessary
difficulties by deliberately not complying with what the parties had
agreed to.
I
do agree with counsel for the defendant that the plaintiff's
conduct as a whole in these proceedings calls for censure by an award
of costs on a higher scale. The plaintiff's desire to simply be
difficult is also evident from his closing submissions where he tried
to bring in material that was either not placed before this court or
recanting previously uncontested or conceded issues. His attitude had
been one of being obstructive in the achievement of justice as
between the parties.
Accordingly
it is hereby ordered that:-
1.
A decree of divorce be and is hereby granted.
2.
Custody of the minor children of the marriage be and is hereby
awarded to defendant with plaintiff having reasonable rights of
access on alternate weekends, half of each school holiday and on
alternate public holidays.
3.
Subject to clause 3.1 below, the plaintiff shall be solely
responsible for the payment of school fees in respect of all the
minor children;
3.1
The school fees payable by the plaintiff shall be pegged to fees
charged at the Dominican Convent, Harare at any given time.
3.2
In the event that the children are enrolled at a school whose fees
exceed those of the Dominican Convent, Harare, the Defendant shall be
responsible for such excess.
3.3
The plaintiff is hereby ordered to comply with the above order on
payment of school fees by reimbursing defendant all the amounts she
paid which were for his account as from the date of the pre-trial
conference when such agreement was reached. Such reimbursement shall
be at the rate of 1,000 United States dollars per month with effect
from 31st
March 2015 if such has not already commenced.
4.
The defendant shall be responsible for the day to day needs of the
minor children.
5.
Movable property.
5.1
The defendant is hereby awarded the movable property listed in a list
supplied to plaintiff. The property must be delivered to defendant
within 7 days from the date of this order.
5.2
The plaintiff shall pay to defendant a sum of seven thousand
(7,000-00) United States dollars for the purchase of a motor vehicle.
If this sum has not been paid by the 31st
December 2014, as agreed by the parties, plaintiff shall be given a
period of two months from the date of this order to make the payment.
6.
Immovable property
Defendant
is hereby awarded Stand 373 Midlands Township 3 of Uplands
sub-division of A of Waterfalls as her sole and exclusive property.
The plaintiff shall bear the necessary costs of transfer of the
property from the seller to the defendant within 7 days from date of
demand.
7.
The plaintiff shall pay costs of suit on an attorney – client
scale.
Mtetwa
& Nyambirai,
defendant's legal practitioners
