CHITAKUNYE
J:
The
plaintiff and defendant were joined in holy matrimony on 28 August
1999 in terms of the Marriages Act, [Cap 5:11]. Their marriage still
subsists. On 1 November 2011 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
an extent that there are no reasonable prospects of restoration to a
normal marriage. The factors for the breakdown included that:-
(a)
The parties separated in 2005 and have not lived together as husband
and wife since thus living apart for a period exceeding 12 months
preceding the institution of these proceedings;
(b)
The parties are incompatible; and
(c)
There is no longer any love and affection between the parties.
Due
to the foregoing the plaintiff alleged that the marriage has
irretrievably broken down as provided for in section 5 of the
Matrimonial Causes Act [Cap 5:13].
The
marriage was blessed with three minor children whose respective dates
of birth are 8th
June 2000, 29th
March 2003, and 25th
July 2004.
The
plaintiff alleged that during the subsistence of the marriage the
parties acquired various movable properties and one immovable
property, namely, Stand No.7027 Shana Street, Chitepo Extension,
Marondera.
The
plaintiff thus prayed for:-
1.
A decree of divorce;
2.
An order awarding custody of the three minor children to the
defendant with the plaintiff enjoying reasonable rights of access
upon prior arrangement with the defendant;
3.
An order that the plaintiff provides for the maintenance of the three
minor children in terms of an existing maintenance order granted at
Marondera Magistrates Court in case no. M69/05 until each child
attains the age of 18 years or becomes self supporting whichever
occurs first;
4.
An order that each party retains as its own, all the movable property
in that party's possession;
5.
An order that the immovable property, namely, Stand No.7027 Shana
Street, Chitepo Extension, Marondera, be awarded to the three minor
children of the marriage in equal shares and that the plaintiff meets
the costs of transfer; and
6.
That each party meets their own costs of suit.
The
defendant, in her plea, conceded that the marriage has indeed
irretrievably broken down albeit not for the reasons advanced by the
plaintiff. She alluded to the plaintiff's conduct as the primary
cause of the breakdown. In answer to plaintiff's claim defendant
pleaded that:-
1.
The plaintiff should be ordered to provide maintenance for the minor
children at an increased figure of $80 per month per child in
addition to providing educational needs as per the existing
maintenance order; and
2.
The plaintiff must pay her post divorce spousal maintenance in the
sum of $100 per month until she dies or remarries.
On
the distribution of property defendant's plea was to the effect
that when plaintiff left the matrimonial home to go and live with his
paramour he took with him most of the movable property including
defendant's personal documents and left her with nothing of value.
She thus asked for plaintiff to return some of the items which she
itemised in paragraph 6 of her plea.
The
defendant indicated in her plea that the parties acquired more than
one immovable property during the subsistence of the marriage. Other
properties acquired but which plaintiff left out included -
(a)
Stand No.323 Nyazema, Macheke;
(b)
Stand No.16 Park Road, Macheke; and
(c)
House No. 88 Tatenda Street, Macheke.
The
defendant, without laying a formal counter claim, asked for a
distribution of the above immovable properties as follows -
1.
Plaintiff be awarded House number 88 Tatenda Street, Macheke; House
number 596 Springfield, Macheke; and Stand 16 Macheke; and
2.
The defendant be awarded Stand 7027 Shana Street, Chitepo Extension,
Marondera and Stand 323 Macheke.
The
defendant also contended that she had been excluded from the family
business she helped set up and in which she is a shareholder, known
as Wiseluck Enterprises (Pvt) Ltd trading as Zvakanaka 1.
She
asked to be awarded a 50% share in Zvakanaka 1 operating from Stand
16 Park Road and that a 50% share in another family business,
Zvakanaka 2, be awarded to the three minor children of the marriage.
In
his replication, plaintiff, inter alia, insisted that the parties did
not acquire any other immovable properties during the subsistence of
the marriage or at any other time besides Stand No.7027 Shana Street
Chitepo Extension, Marondera. Thus, as at the close of pleadings
plaintiff was adamant that no other immovable property was acquired
whilst defendant was insistent that other immovable properties were
acquired.
As
confirmed in evidence, at the pre-trial conference the defendant was
tasked with bringing forth evidence of the existence of other
immovable properties. In this regard a letter was obtained from
Murewa Rural District Council confirming the existence of two other
immovable properties registered in plaintiff's name.
It
was apparently because of this revelation that the issues for trial
were captured as follows:-
(1)
Whether or not House number 88 Tatenda Street, Macheke forms part of
the parties' property to be shared and if so, what is the equitable
way of sharing it?
(2)
What is the equitable way of sharing Stand number 7027 Shana Street,
Chitepo Extension, Marondera between the parties?
(3)
Whether or not the Plaintiff owns Stand 323 Macheke and Stand 16
Macheke and if so, how they should be distributed between the
parties?
(4)
How much should the plaintiff contribute towards the maintenance of
the three minor children?
(5)
Whether or not the defendant is entitled to any maintenance from the
plaintiff and, if so, the quantum thereof.
The
issues referred for trial can be put into two categories that is: -
issues to do with the distribution of assets of the spouses and the
issues to do with maintenance of the children and defendant.
It
is common cause from the evidence by the parties that they both
agreed that the marriage has irretrievably broken down, neither party
wished to reconcile or continue with the marriage. In the
circumstances, court has no option but to accept that the marriage
has indeed irretrievably broken down and so a decree of divorce
should be granted.
It
was also common cause that Stand numbers 323 Nyazema, Macheke and 16
Park Road, Macheke are registered in plaintiff's name.
The
plaintiff gave evidence and tendered documentary evidence in support
of his stance on the assets he believed are available for
distribution and those assets he believed should not be subject of
distribution.
He
also testified on his inability to pay the maintenance sum defendant
claimed.
The
plaintiff's evidence on the assets was to the effect that the only
asset acquired during the subsistence of the marriage was the
matrimonial house, namely, Stand number 7027 Shana Street, Chitepo
Extension, Marondera. He solely acquired this property soon after
marriage in the year 2000. The defendant never made any contribution
towards its acquisition. He acquired it from his own resources as he
had been operating a general dealer's shop from about 1996.
In
appreciation of the defendant's role as a full time housewife who
did wifely duties in the home he was begrudgingly offering her a 20%
share in this property otherwise he was of the view she did not
deserve any share.
Regarding
other immovable assets, plaintiff argued that the defendant should
not get any share thereof. These other properties comprised Stand 323
Nyazema Township Macheke which he said he acquired before marriage in
1999 as a business Stand. He developed that Stand in the late 2005 to
2006 together with a business partner Joshua Mhlanga. At the time
this Stand was developed they had separated with defendant and so
defendant had no contribution.
He
and his business partner also acquired and developed Stand number 16
Park Road, Springfield, Macheke from their business proceeds.
Regarding
House Number 88 Tatenda Street, Macheke, the plaintiff argued that it
was not his property hence it should not be considered in the
distribution.
The
plaintiff's evidence on the acquisition of the properties is
however contradictory. Firstly in the summons and declaration he
categorically stated that no other immovable property was acquired
during the subsistence of the marriage or at any time after
separation apart from Stand 7027 Shana Street, Chitepo Extension,
Marondera.
The
Plaintiff only conceded to the existence of some of the properties
after the defendant had obtained a letter from Murewa Rural District
Council confirming that two of the Stands were registered in the
plaintiff's names.
Secondly,
in response to the defendant's allegation that she has been
excluded from the family company, Wiseluck Enterprises (Pvt) Ltd,
which company traded as Zvakanaka 1 and Zvakanaka 2 on premises
bought by the business, the plaintiff argued that that company ceased
to exist in 2004 when the parties had marital problems. He stated in
his replication that Zvakanaka 1 and Zvakanaka 2 are in fact owned by
the plaintiff and three other directors, to the exclusion of the
defendant, through a company incorporated in 2006 known as Checkcast
Enterprises (Private) Ltd. He said this new company took over
Wiseluck Enterprises operations and defendant has no stake in it.
It
is pertinent to note that in his viva voce evidence the plaintiff
contradicted himself further when he now said that the businesses
were in fact operated by himself and one Joshua Mhlanga. These two
were the owners of Checkcast Enterprises (Pvt) Ltd; it was no longer
the plaintiff and three other directors. I am of the view that the
plaintiff was simply not being truthful. The properties, namely,
Stand number 323 Nyazema Township, Macheke and Stand number16 Park
Road, Macheke, were acquired by the plaintiff.
This
is also confirmed by exhibit 26 which is a letter from Murewa Rural
District Council. Mr. James Muza of Murewa Rural District Council
gave evidence and confirmed that according to Council records the two
Stands are registered in the name of the plaintiff.
In
a bid to distance the properties from distribution plaintiff further
testified that the Stands were in fact sold and so are no longer
available for distribution. In that bid he tendered an agreement of
sale between himself, as seller, and Daniel Masaiti and Chipiwa
Masaiti as purchasers in respect of Stand number 16 Park Road,
Macheke dated 10th October 2010 (exhibit 2). He also tendered a
memorandum of agreement of sale between himself, as seller, and
Judith Takaringofa, as purchaser, in respect of Stand 323 Nyazema
Township, Macheke dated 31st January 2011 (exhibit 4).
Though
the agreements of sale were intended to show that the properties in
question had been disposed, the agreements also served to confirm
that the properties belonged to plaintiff and not to Checkcast
Enterprises (Pvt) Ltd. This further confirmed that the plaintiff was
not being truthful from the inception when he denied ever acquiring
any other property during the subsistence of the marriage.
The
defendant's evidence on the acquisition and development of the
Stands was to the effect that as a married couple they were allocated
Stand 7027 Shana Street, Chitepo Extension, Marondera. It was an
undeveloped Stand. In the year 2000, which was soon after the
allocation, they started developing the Stand. In that same year the
plaintiff enrolled at Kushinga Phikhelela Agriculture College. Whilst
the plaintiff was at college she would go and assist him in his
agricultural project at the college by tending the crops he planted
and the pigs he was rearing. She was managing the family business in
his absence. She also built a house at Stand 7027 from proceeds from
the family business.
The
defendant indicated that Stands 323 Nyazema and 16 Park Road, Macheke
were acquired and developed using proceeds from the family business.
As far as she was concerned the Stands were developed when the couple
was still together and with proceeds from the family business. She
further narrated her role in the development and operation of the
family business. She categorically denied that they separated in 2005
and instead contended they separated in 2010.
This
aspect is, in my view, not pivotal in as far as it is accepted that
assets acquired during separation are subject to distribution
together with assets acquired before separation.
From
the evidence adduced it is clear that Stands 323 Nyazema and 16 Park
Road, Macheke were acquired during the subsistence of the marriage.
These properties were acquired from proceeds from the family business
which defendant participated in.
As
regards House Number 88 Tatenda Street and House Number 596
Springfield, Macheke no credible evidence was adduced to confirm that
they were acquired by plaintiff.
The
defendant's evidence was to the effect that they acquired 88
Tatenda Street in 2005.
Unfortunately,
she could neither produce evidence of such purchase nor call
witnesses such as the seller to confirm that indeed the property was
bought by the couple.
As
for House number 596 Springfield, the defendant had virtually nothing
to say on its acquisition.
In
the absence of credible evidence that these two immovable properties
were acquired by the parties it cannot be held that they are subject
to distribution.
The
next question is how the properties found to be subject to
distribution should be distributed.
The
distribution of assets of the spouses at the dissolution of a
marriage is governed by section 7 of the Matrimonial Causes Act [Cap
5:13]. Court has wide discretion on how to fairly and equitably
distribute the assets. The assets to be considered for division and
distribution are assets of the spouses. The term 'assets of the
spouses' connotes assets that maybe in either spouse's name or
jointly owned. Gonye v Gonye 2009 (1) ZLR 232(S). Such assets include
all assets purchased whether before or during the marriage and
property acquired after separation unless such property is
specifically excluded in terms of section 7(3) of the said Act.
Musonza v Musonza HH35/10 and Ncube v Ncube 1993 (1) ZLR39 (S).
Section
7(4) of the Act enjoins court to consider all the circumstances of
the case and to endeavour 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. Some of the factors
for consideration are outlined in section 7(4)(a)- (g). The factors
outlined therein show that the parties' direct financial
contributions are not the only factors.
In
Shenje v Shenje 2001 (2) ZLR 160 (H) at p 163G-H GILLESPIE J had this
to say on the outlined factors:-
“The
factors listed in the subsection deserve fresh comment. One might
form the impression from the decisions of the courts that the crucial
consideration is that of the respective contributions of the parties.
That would be an error. The matter of the contributions to the family
is the fifth listed of the seven considerations. The first four
considerations all address the needs of the parties rather than their
dues. Perhaps, it is time to recognise that the legislative intent,
and the objective of the courts, is more weighted in favour of
ensuring that the parties' needs are met than that their
contributions are recouped.”
In
casu, it is clear that the parties operated some family business in
the retail sector. Whilst the plaintiff attempted to restrict the
defendant's role to that of cooking, washing clothes, looking after
the children, the defendant did participate in the family business.
Her contribution cannot be ignored. It is pertinent to point out to
parties that the needs of the parties as they go out of the marriage
must not be ignored or treated as unimportant. It is not easy for a
court to endeavour to place the spouses and children in the position
they would have been in had a normal marriage continued in the face
of scant evidence on the parties' needs and abilities. It is thus a
misnomer for parties to expend their energies only on contributions
made during the subsistence of the marriage when this is not the only
consideration.
Despite
the less than satisfactory evidence on the parties' income earning
capacities, expectations and needs as they part ways I am of the view
that defendant deserves a share in the assets of the spouses. Though
the marriage may not have lasted very long that is no bar to
recognition of her needs as a spouse and deserving of a share in the
assets accumulated during the subsistence of the marriage.
In
a bid to deny the defendant a share in the property the plaintiff
testified that the two immovable properties had been sold.
Of
interest is that the story about the sale only surfaced after the
initial story of never having acquired such properties was busted.
This latest version was suspect. It was suspect in that, firstly, the
plaintiff could not satisfactorily explain what drove him to sell the
properties at a time he knew divorce proceedings were imminent. The
judgment debt he attempted to use in this regard was for a sum of
$7,000.00 over movable properties.
Under
cross examination he conceded the sale was not to meet this debt.
The
plaintiff admitted, under cross examination, that in the years 2009
and 2010 he instructed a law firm to negotiate a divorce by consent.
The negotiations for an uncontested divorce fell through after the
parties could not agree on the sharing of these same properties that
in late 2010 and early 2011 the plaintiff purported to sell.
It
is trite law that a wife cannot bar her husband from selling assets
registered in his name more so when no divorce action requiring the
distribution of those assets is instituted. However, court can
intervene where a sale is not genuine but is meant to defeat the
wife's cause.
In
Muzanenhamo & Anor v Katanga and Ors 1991 (1) ZLR 182 (S) McNALLY
JA had this to say of such situations:
“There
must be some evidence that he (husband) is disposing the asset 'at
undervalue to a scoundrel, the accomplice of the husband' or in
some way he is attempting to defeat her just rights.”
In
casu, the plaintiff said he sold Stand Number 323 Nyazema, for
$13,500.00 and Stand Number 16 Park Road, for $17,000.00.
The
defendant contended that the prices were too low, and, from her
knowledge of the value and sizes of the Stands the bigger and more
valuable Stand was sold for a lesser amount. This, she contended,
served to show that there was no genuine sale at all.
The
plaintiff did not wish to call the purchasers of the Stands to
confirm the authenticity of the sales. He also did not produce any
valuation of the Stands to rebut the defendant's assertion that the
stated prices were well below the values of the respective Stands in
their developed state.
I
am of the view that the plaintiff purported to sell the Stands in
question in order to defeat the defendant's just rights. He cannot
get away with it. The defendant deserves a share in the Stands.
Despite
the revelation that two other immovable properties were acquired or
developed during the subsistence of the marriage the plaintiff did
not see it fit to alter his position on how the property should be
distributed.
The
defendant also maintained her stance that she should be awarded Stand
Number 7027 Shana Street, Chitepo Extension, Marondera and Stand 323
Nyazema, Macheke with the plaintiff being awarded House No.88 Tatenda
Street, Macheke, House No.596 Springfield, Macheke and Stand No.16
Park Road, Macheke.
I
am of the view that in the absence of adequate evidence on the values
of the immovable properties in question the most appropriate route is
to award in terms of shares in respect of each property.
I
am of the view that in respect of the matrimonial house, that is
Stand 7027 Shana Street, Chitepo Extension, Marondera, each party be
awarded a 50% share. As for the business Stands plaintiff shall be
awarded a 60% share and defendant a 40% share. The plaintiff shall be
granted the first option to buy out the defendant after a proper
valuation of the properties.
Section
7(1)(b) of the Matrimonial Causes Act provides that 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 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 plaintiff argued that the maintenance order extant should
continue in respect of the children.
That
order provides, inter alia, that the plaintiff shall meet all the
educational needs of the children in addition to paying $50-00 per
month per child until each child attains the age of 18 years or
becomes self supporting whichever is earlier.
The
defendant, on the other hand, contended that the maintenance sum paid
must be increased to $80-00 per month per child (as per her plea). In
her evidence in court she altered her demand to $100.00 per month per
child. This would be in addition to the educational provisions in
term of the Maintenance Order extant.
As
regards post-divorce spousal maintenance the plaintiff offered
nothing.
The
defendant, on the other, had asked for $100- 00 per month (as per her
plea) and $150-00 in her viva voce evidence.
The
plaintiff's argument was to the effect that after separation
defendant went to Mozambique where she got married and so he should
not be ordered to maintain her. He also alluded to the fact that
defendant took up Mozambican citizenship and only comes to Zimbabwe
as a visitor on a visitor's visa.
Though
defendant admitted to have taken up Mozambique particulars she
explained the circumstances under which she obtained the documents
and alluded to the fact that she is resident in Zimbabwe as evident
by her availability during the numerous court cases the two have been
through in our courts. She is still Zimbabwean. She denied that she
ever married anyone after separation.
From
the evidence adduced not much credence could be given to the
plaintiff's argument that the defendant is now married. There was
no proof of such marriage. In my view it was purely the plaintiff's
own imagination in a bid to avoid his responsibilities. The
allegation that the defendant is now resident in Mozambique would not
affect her claim to maintenance. In any case no credible proof of
migration was tendered and defendant vehemently denied that she was
now resident in Mozambique.
In
determining an appropriate award of maintenance court is enjoined to
endeavour to ensure that the children of the marriage continue
enjoying the same standard of living as the responsible person, in
this case the father. Such standard must be as they had been used to
at the time they were staying together. This inevitably calls for
credible evidence of the means and ability of the responsible person
to pay the sums required.
In
casu, not much evidence was adduced on the resources available to the
plaintiff.
It
would appear the defendant was content with stating that the
plaintiff runs a supermarket and butchery. When further asked why she
believed plaintiff could afford the new figures the defendant's
response was to the effect that the plaintiff can afford because he
is a farmer, a businessman and also runs a piggery project.
No
effort was made to show the viability of these ventures.
It
may also be noted that the defendant's new figures seemed to have
been plucked from the air as she provided no justification for the
figures she was now claiming of $80-00 in the plea and $100-00 in her
viva voce evidence.
I
am of the view that in as far as the plaintiff was ordered to provide
all educational needs of the children the amount of $50-00 suffices
per month per child. Should genuine need for variation arise the
defendant can always approach the Maintenance Court that granted the
extant order for variation.
I
must however stress the need to approach court with evidence on the
needs of the children and evidence of the plaintiff's ability.
The
needs of the children must be well articulated. Whilst there maybe
difficulties in ascertaining the plaintiff's income, effort should
be made to present some aspects of his lifestyle or some credible
tool by which to measure his income and ability to pay the amount
being claimed.
The
issue of post-divorce maintenance for the defendant was not brought
as a counter claim.
It
would appear this was only brought up in response to the plaintiff's
request that he continues paying the maintenance for the children in
terms of the Magistrates Court order in Case No. M69/05.
The
reason advanced by the defendant in her plea for seeking maintenance
was that she was kicked out of the family business and so she wants
the sum of $100-00 per month so that she maintains the same lifestyle
she used to enjoy until she remarries.
No
figures were outlined of her basic expenses and her own income.
In
her viva voce evidence the reason she advanced for seeking
maintenance was that she can no longer work for herself because most
of the times she would be dragged to court by plaintiff. She was thus
failing to find time to do her cross border trade.
It
was clear to me that the defendant had not done her homework on what
was needed to justify post divorce maintenance. This is probably why
she had two contradictory figures. Clearly, she did not apply her
mind as to what exactly she needed the money for.
It
must be borne in mind that spousal post divorce maintenance is not
granted just because it has been asked for. One must show that there
is need for such maintenance and further show for how long such
maintenance should be paid.
I
am of the view that no post divorce maintenance can be granted in the
current circumstances. Should defendant feel she genuinely needs
maintenance she can always approach court with her own claim based on
her own cause of action. In such scenario she will obviously be
expected to outline her basic needs and her own income.
In
the result it is hereby ordered that:-
1.
A decree of divorce be and in hereby granted.
2.
Custody of the minor children of the marriage, namely, Desire Sithole
(born 8 June 2000), Daisy Sithole (born 29 March 2003) and Delight
Sithole (born 25 July 2004) be and is hereby awarded to the defendant
with the plaintiff being granted reasonable rights of access to the
minor children upon prior arrangement with the defendant.
3.
The plaintiff shall pay maintenance for the minor children in terms
of the Maintenance Order granted at Marondera Maintenance Court in
case no. M69/05.
4.
The plaintiff is hereby awarded a 50% share in the matrimonial
property, namely, Stand number 7027 Shana Street, Chitepo Extension,
Marondera with the defendant being granted the other 50% thereof.
5.
The plaintiff is hereby awarded a 60% share in Stand number 16 Park
Road, Macheke with the defendant being awarded a 40% share thereof.
6.
The plaintiff is hereby awarded a 60% share in Stand number 323
Nyazema Township, Macheke with defendant being awarded 40% thereof.
7.
In respect of the immovable properties in clauses 4, 5 and 6 above,
the parties shall agree on the value of each property within 14 days
of the date of this order failing which they shall appoint a mutually
agreed valuer to do the valuation within 30 days of the date of such
failure.
8.
Should the parties fail to agree on a valuer the registrar of the
High Court shall appoint such valuer from his list of valuators
within 14 days.
9.
The plaintiff shall bear the costs of valuation.
10.
Upon receipt of the valuation report the parties shall have the
option to trade their respective shares taking into account the value
of each property. Should this option fail the plaintiff be and is
hereby granted the option to buy out defendant in respect of her
share or balance thereof after trade off. The plaintiff is further
granted a period of 4 months within which to buy out the defendant
unless the parties agree on a longer period.
11.
Should the plaintiff fail to buy out or make a payment plan
acceptable to the defendant within the period stipulated in clause 10
above, the outstanding properties shall be sold to best advantage by
a mutually agreed estate agent or one appointed by the Registrar of
the High Court within 14 days of such failure. The net proceeds shall
be shared in terms of their respective shares in the particular
property sold.
12.
Each party shall bear their own costs.
Magwaliba
& Kwirira, defendant's legal practitioners
