UCHENA
JA:
The
plaintiff sued his wife the defendant seeking a decree of divorce and
other ancillary orders.
The
parties were married on 5 October 1991 in Bulawayo. Their marriage
was blessed with a son who has since attained the age of majority and
obtained his first degree. He is staying with the defendant. The
defendant did not oppose the plaintiff's claim for a decree of
divorce.
She
however sought the distribution of assets including their matrimonial
home and maintenance.
The
parties found each other on the distribution of the movables and the
matrimonial home. They sold the matrimonial home and used most of the
proceeds to purchase a house which was registered in the name of the
defendant and their son.
The
only outstanding issue is whether or not the defendant is entitled to
post divorce maintenance and the quantum of such maintenance.
She
initially wanted to be paid maintenance in the sum of US$8,000-00 per
month. After their settlement on the issue of the matrimonial home
she reduced her claim to US$3,000-00 per month till she dies
remarries or cohabits with another man.
The
plaintiff is not willing to pay her maintenance for life. He offered
to pay maintenance in the sum of US$1,000-00 per month for a year
after the granting of a decree of divorce.
The
plaintiff is a medical doctor. His income between January and
December 2015 gave him an average income of US$12,913-81 per month.
His recent income between January 2016 and March 2016 averaged
US$10,868-00 per month. He is currently maintaining the defendant in
the sum of US$3,000-00 per month and has previously maintained her at
higher amounts as he would give her money whenever she made demands.
It
is common cause that US$3,000-00 per month is a reasonable
expenditure for both the plaintiff and the defendant. The plaintiff
initially gave the impression that he lives inexpensively but when
details of his expenditure where sought he said he lives on
US$3,000-00 per month over and above his mortgage bond repayments of
US$2,111-00 per month.
He
admitted that US$3 000-00 per month is a reasonable monthly expense.
He
lives in an apartment while the defendant lives in the house bought
from the proceeds of the sale of the matrimonial home. She currently
lives with their son while he lives alone.
It
is now accepted that marriage is not a ticket for one to be
maintained for life. A former spouse who is able to work must do so
and maintain himself/herself.
The
defendant has a certified medical condition which prevents her from
continuing with her business as a beautician. See exhibit 1 an
affidavit by Dr A. J. Gunning, in particular paragraphs 3 to 11 which
gives details of the defendant's ailments. She suffers from
haemoptysis (the coughing out of blood which the Dr said is
increasing. She also suffers from “pulmonary emboli which refers to
the presence of blood clots within the pulmonary arterial circulation
and that condition requires lifelong anti-coagulation”. She was
diagnosed by Dr Frost to have “chronic sensory polyneuropathy and
bilateral carpel tunnel syndrome”. This means “the nerve endings
in her lower legs do not function normally and she suffers abnormal
sensations in the lower limbs comprising numbness, tingling and
pain”. This also affects her writs, hands and fingers. She also
suffers from type 2 diabetes for which there is no specific available
therapy. She as from March 2012 has developed moderately severe
oedema of both lower limbs. In addition to the above Dr Gunning also
diagnosed that the defendant has “chronic lumbar spinal
spondlodysthesis”. He described it as a chronic arthritis of the
lower spine a condition for which there is no known curative
treatment. In paragraph 11 Dr Gunning said the defendant's
condition “could very conceivably make it extremely difficult for
her to stand for any length of time, and for which conditions there
is no effective curative therapy”. He in paragraph 12 concluded by
saying; “It is therefore to my mind very credible, that any
occupation or profession which she might seek to conduct, which
involves standing for long periods of time, might be extremely
difficult, perhaps impossible for her to endure”.
The
defendant's condition is apparent over and above being medically
certified. She had to be allowed to lead her evidence while seated
because it had been accepted by the court and the plaintiff's
counsel that she could not do so while standing in the wittiness
stand.
The
plaintiff had while on a journey to their son's graduation,
arranged for her to be assisted to move from the plane to where they
could board transport from the airport. See exhibit 2 in which the
plaintiff said;
“She
can walk but has severe arthritis of her knees and back and cannot do
long distances and certainly cannot manage all the luggage that she
is carrying. I have booked the meet and assist but she remains
worried that she will not be able to manage the express even with
help. Is there anything else that I could arrange to make her journey
less stressful and easier?”
This
confirms the plaintiff's acceptance of the defendant's condition
as described by Dr Gunning, and the plaintiff's personal knowledge
of the defendant's condition.
It
is common cause that she had since 2003 stopped running her business
because of ill health. It is therefore insincere for the plaintiff to
now stand in the wittiness stand and say she can on divorce resume
that business and, support herself.
The
plaintiff further alleged that the defendant has an income from
rentals paid to her late father's estate. The estate has not been
wound up. It is therefore premature for the plaintiff to rely on such
income.
No
evidence was led from the Executor as to how much is being paid to
the defendant.
The
defendant said on being wound up, the estate will be shared between
her and her brother. It is not yet known how it will eventually be
wound up. It is not known whether or not there will be anything to
share.
The
plaintiff can await the winding up of the estate and seek a variation
of the maintenance he has to pay to the plaintiff.
The
evidence led from an investigator hired by the plaintiff is not
conclusive.
The
facts found proved are;
1.
The plaintiff is currently maintaining the defendant at US$3,000-00
per month.
2.
He earned an average of US$12,923-81 per month in 2015 and an average
of US$10,868-00 per month, between January and March this year.
3.
That salary is well able to maintain him and the defendant at
US$3,000-00 each per month.
4.
It leaves him a balance of between US$2,868-00 to US$4,913-00 per
month from which he can save for the future.
5.
His current means therefore enables him to continue maintaining the
defendant at US$3,000-00 as he is currently doing. He has been able
to do so and more since their separation.
6.
The defendant is not the type of spouse who should be weaned off from
her former husband on divorce. Her medical condition qualifies her
for maintenance till death or when she remarries or cohabits with
another man.
7.
That the defendant's father's estate is still to be wound up. If
the defendant's means improves from what she will get from it the
plaintiff can seek variation.
8.
The plaintiff's fear that his means may come down and make him
unable to maintain the defendant at US$3,000-00 per month is not a
bar to his maintaining her at that rate till the arrival of that
eventuality, which would entitle him to seek variation of the
maintenance order.
9.
Their son has acquired his first degree and is currently staying with
the defendant. This increases the defendant's expenses. The
possibility of his going for further education does not presently
disentitle the defendant from the maintenance she seeks. If those
changes come they can only be relevant in an application for
variation. This also applies to the possibility of the plaintiff
having to pay fees for their son's further studies.
I
am therefore satisfied that on the present facts the plaintiff is
well able to maintain the defendant at US$3,000-00 per month. He has
been doing so and his means enables him to continue doing so.
I
do not accept Mr Mpofu's submissions that the plaintiff is not able
to maintain the defendant at US$3,000-00 per month or that the
defendant can work and support herself.
The
plaintiff in his evidence accepted that she is of ill health and that
condition caused her to stop working during their marriage. The
doctor's report tendered as an exhibit clearly establishes that she
is of ill health and cannot work. A spouse who may if in good health
be expected to work and earn his or her own money and support himself
/ herself is entitled to maintenance if the evidence placed before
the court establishes that his or her condition does not permit
him/her to do so. His or her condition entitles him or her to
permanent maintenance which according to Manyarara JA in the case of
Chiomba v Chiomba 1992 (2) ZLR 198 is reserved for an elderly spouse
who is too old to work. A spouse who is too ill to work is like the
spouse who is too old to work entitled to permanent maintenance.
I
therefore agree with the submissions made by Mrs Mtetwa that the
plaintiff is able to maintain the defendant at US$3,000-00 per month
and that the defendant's condition entitles her to maintenance
until she dies remarries or cohabits with another man.
On
the issue of costs the defendant's claim for maintenance succeeded.
The costs should therefore follow the result.
I
therefore make the following order;
1.
A decree of divorce be and is hereby granted.
2.
The plaintiff shall maintain the defendant in the sum of US$3,000-00
per month until she dies remarries or co-habits with another man.
3.
The plaintiff shall pay the defendant's costs of suit.
Atherstone
& Cook, plaintiff's legal practitioners
Mtetwa
& Nyambirai, defendant's legal practitioners
