GOWORA
JA: The
parties were formerly married in terms of the law; they are no longer
married having been divorced by the High Court on 3 February 2013.
This is an appeal against part only of a judgment granting the decree
of divorce.
The
parties concluded a customary union in 1995 and on 31 March 2000
their union was formally solemnized in terms of the Marriage Act
[Chapter
5:11].
The union did not produce any issue.
On
8 April 2011, the respondent, alleging irretrievable breakdown of the
union, instituted divorce proceedings. At a pre-trial conference held
before a judge in chambers, the parties agreed that the marriage had
broken down irretrievably and that a decree of divorce should be
issued by consent.
They
also agreed that the respondent should be ordered to pay the sum of
USD20.00 per month to the appellant as maintenance.
The
distribution of the movable assets of the parties was agreed between
the two.
The
parties were unable to agree on the manner of distribution of the two
immovable properties, being Stand 6071 Unit J Chitungwiza, and a
Stand in Norton as well as an F13 pick-up truck, which were held over
for trial. Also for determination before the trial court was whether
an undeveloped Stand in Kwekwe Marshlands formed part of the
matrimonial assets of the parties and was therefore liable for
division, apportionment or distribution in terms of the Matrimonial
Causes Act [Chapter
5:13],
('the Act').
The
trial court made a factual finding that the Kwekwe Marshlands stand
constituted matrimonial property.
It
then proceeded to dispose of the dispute as follows:
The
respondent was awarded the Kwekwe Marshlands stand, a 70 per cent
share in Stand 6071 Unit J Chitungwiza and the F13 pick-up truck. The
appellant was awarded the undeveloped Stand in Norton as well as 30
per cent share in Stand 6071 Unit J Chitungwiza.
The
appellant was aggrieved and has noted this appeal on a number of
grounds. Essentially, the appellant seeks to challenge the exercise
of discretion by the learned judge in the manner in which he disposed
of the dispute with regard to the immovable assets.
In
his disposition, the learned trial judge properly took into account
the duration of the union of about fifteen years. The trial judge
gave due credit to the appellant for the role that she had played as
wife to the respondent. Indeed, the respondent himself said in
evidence that the appellant had performed her wifely duties and had
contributed by caring for his welfare and wellbeing. He also
considered that she had provided other contributions which according
to the respondent had contributed to the matrimonial estate.
Nevertheless, the respondent was unable to credit her for
contributing to the matrimonial estate on the premise that she was
not gainfully employed during the marriage. He offered her a 30
percent share of the matrimonial home in Chitungwiza and the
undeveloped stand in Norton.
The
trial judge took the view that the appellant had not directly
contributed to the matrimonial estate and awarded her the property
that the respondent had offered her in his claim. Aside from the
issue relating to the contribution, the trial judge gave no other
reason for his disposition of the assets. In the view of the learned
trial judge, an award of the Norton Stand and a 30 percent share in
the matrimonial home would meet the justice of the case.
The
exercise of discretion by an appropriate court as required in terms
of section 7 of the Act has been the subject of scrutiny by the
courts within this jurisdiction.
It
is trite that in giving effect to the broad discretion bestowed to it
under section 7(1) the court must have regard to the factors set out
in section 7(4) which are:
(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 any 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.
The
Act further provides that 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.
In
Gonye
v Gonye
2009 (1) ZLR 232, at 236H-237B, MALABA JA (as he then was) remarked:
“It
is important to note that a court has an extremely wide discretion
regarding the granting of an order for the division, apportionment or
division of the assets of the spouses in divorce proceedings. Section
7(1) of the Act provides that the court may make an order with regard
to the division, apportionment or distribution of the assets of the
spouses including an order that any asset be transferred from one
spouse to the other. The rights claimed by the spouses under section
7(1) are dependent upon the exercise by the court of the broad
discretion”.
As
a consequence, in the exercise of its jurisdiction in making an order
for the division, apportionment or distribution of matrimonial
property under the Act, a court is enjoined to have regard to all the
circumstances of the case.
In
casu,
the learned trial judge was alive to the need to have regard to the
factors set out in section 7(4). The court was alive to the fact that
the appellant was not employed and had never been formally employed
during the union. The court commented:
“The
above guiding factors make it clear that the indirect contributions
must be considered in the distribution of assets between the spouses.
The issue might thus be what weight to put on such indirect
contribution. This will of course vary from case to case. There may
be cases where the indirect contribution is not considerable. And
also cases where indirect contribution is very significant.”
It
is appropriate to have regard at this stage to the dicta
in Gonye's
case (supra).
The
discretion enjoyed by an appropriate court under section 7 is
extremely wide and a court should be loath to fetter that discretion.
In such exercise, every factor referred to in section 7(4) is
important in the determination of the disposition of the matrimonial
estate. That is to say, that weight should be placed on all the
factors such that the exercise of discretion should not appear to be
based on any one factor to the exclusion of others.
Needless
to say, the exercise of a discretion must be concomitant to the power
to exercise such a discretion. This power is to be found in section
7(1) and (2), which read:
“(1)
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)
the division, apportionment or distribution of the assets of the
spouses, including an order that any asset be transferred from one
spouse to the other;
(b)
the payment of maintenance, whether by way of a lump sum or by way of
periodical payments, in favour of one or other of the spouses or of
any child of the marriage.
(2)
An order made in terms of subs (1) may contain such consequential and
supplementary provisions as the appropriate court thinks necessary or
expedient for the purpose of giving effect to the order or for the
purpose of securing that the order operates fairly as between the
spouses and may in particular, but without prejudice to the
generality of this subsection —
(a)
order any person who holds any property which forms part of the
property of one or other of the spouses to make such payment or
transfer of such property as may be specified in the order;
(b)
confer on any trustees of any property which is the subject of the
order such powers as appear to the appropriate court to be necessary
or expedient.”
In
the exercise of the discretion referred to in the above provisions,
it is important that an appropriate court not lose sight of the
overriding principle enshrined in the provisions, that at the end of
the day the court is enjoined to ensure that in its disposition of
the matter, it is bound to achieve equity between the parties.
As
a result a lot of authorities, in construing the provisions of
section 7 as a whole, refer to the need to achieve an equitable
distribution of the assets of the spouses consequent upon the grant
of a decree of divorce.
Therefore,
it is not surprising that the provision itself has specified, in no
uncertain terms, those assets of the parties which may not be subject
to division, apportionment or distribution under the section. This
exclusion is to be found in subsection 3 which reads:
“(3)
The power of an appropriate court to make an order in terms of
paragraph (a)
of subs (1) shall not extend to any assets which are proved, to the
satisfaction of the court, to have been acquired by a spouse, whether
before or during the marriage —
(a)
by way of an inheritance; or
(b)
in terms of any custom and which, in accordance with such custom, are
intended to be held by the spouse personally; or
(c)
in any manner and which have particular sentimental value to the
spouse concerned.”
Having
made a finding that all the property being claimed by the parties to
the dispute before it was liable to division, apportionment or
distribution in terms of the Act, it behoved the court a
quo
to make a specific finding on whether or not it should make a
disposition in respect of each of the items being claimed, the
rationale behind its finding and the manner of disposition.
This
the court did not do. It merely remarked that the indirect
contribution by the appellant would justify an award in respect of
the Norton Stand and a 30 percent share in the house in Chitungwiza,
which was the matrimonial home of the parties.
The
parties' customary law union was concluded either in 1994 or 1995.
Prior to that the parties had cohabited from about 1990. It is common
cause that neither party had, at that stage, any property worthy of
mention. Whilst the respondent had acquired a degree in Agricultural
Engineering the appellant had no skills. It was due to the
encouragement and efforts of the respondent that she went to school
and acquired a certificate as a tailor.
In
1995 or 1996 the parties acquired the Stand in Chitungwiza, on which
was a dwelling comprising three small rooms. It is not evident
whether or not it had ablution facilities. It is logical to assume
that it had. As at the time the matter was heard, the parties had
improved it considerably to such an extent that they are in a
position to rent out part of the dwelling to tenants. It is from
these rentals that the appellant is earning a living. It is also this
property that the appellant sought as her portion from the
matrimonial estate.
In
addition to the above property the parties also acquired two
undeveloped Stands, one in Kwekwe Marshlands area and the other in
Norton. Both bear the name of the respondent.
Apart
from the acknowledgment by the parties of the purchase of the Stands,
no other details were furnished to the court with regard to the
proper description, correct location, extent or value of the
properties in question. Despite the absence of these material
details, the court a
quo
was disposed to order a distribution of the immovable properties.
I
am not convinced that this was the correct manner of dealing with
such a contentious issue.
However,
the difficulty that I see in the manner of disposition is related to
the absence of reasons by the court a
quo,
apart from a vague reference to the duration of the marriage and the
parties' respective contributions to the matrimonial estate.
It
seems that in disputes of this nature trial courts place undue
emphasis on the parties' contributions to the exclusion of other
factors. The ambit of section 7 as a whole must be considered and
given effect to in the determination of the dispute at hand.
In
my view, a court that merely focuses on a number of issues without
regard to the requirements set out in the section as a whole is
guilty of a misdirection.
In
casu,
it was evident that whilst the respondent was well educated and in
gainful employment, the appellant was devoid of any skills that would
enable her to obtain gainful employment. At the time of divorce, she
was aged 45 and it was accepted that her chances of remarriage were
non-existent. She said that her inability to bear a child made it
difficult for her to get a companion willing to commit to marriage.
The respondent on the other hand was already in a relationship from
which he had a child.
Over
and above this, the respondent admitted that the appellant had played
her role as a wife. His evidence was that she had contributed
immensely in looking after him, cooking for him, washing his clothes
and making sure that he went to work looking presentable.
That
a wife's indirect contribution to the family cannot be disregarded
is beyond question.
It
is evident that the court a
quo
was alive to the weight to be placed on such contribution in
considering the apportionment of the assets of the parties. The court
had regard to the dicta
by ZIYAMBI JA in Usayi
v Usayi
2003 (1) ZLR 684, wherein at 688A-D, the learned judge stated:
“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 a 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 and many various duties, how can one say, as is
often remarked: 'throughout the marriage she was a housewife. She
never worked.'
In
my judgment, 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 contributions 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.'
A
fair approach is set out by Professor Ncube in his book Family
Law
in Zimbabwe.”
I
respectfully agree with the comments of the learned judge.
In
my view, the above dicta
set out the correct approach to be followed by an appropriate court
in the admittedly difficult task of determining the respective
contributions of the parties. Had the learned judge followed this
approach he would not have been misdirected. He chose to overlook not
only the authorities but the clear provisions of the Act.
As
stated previously, the appellant is unlikely to remarry. She has no
means to acquire any property due to her lack of skills. She was
awarded an amount of USD20 per month as maintenance which would not
enable her to meet her personal expenses let alone provide her with
the means to acquire any property to live in. It would also be
unlikely in the circumstances that she would be able to raise
sufficient funds to construct a dwelling on the Norton stand.
The
ambit of the Act as a whole is to leave the parties in a position
that they would have been had the marriage relationship continued.
Sadly,
in this case, it is evident that the respondent has been left in a
much better off position than the one he would be in if he and the
appellant were still married. The appellant on the other hand is
worse off. She is now homeless. She cannot under any stretch of the
imagination buy or construct a dwelling. She will be unemployed and
will thus be rendered destitute.
In
my judgment, the learned judge in the court a
quo
failed to properly exercise his discretion under the Act.
He
failed to consider all the factors upon which such an enquiry should
be made. More importantly, he made dispositions on immovable
properties in the absence of any proper valuations of the said
properties.
The
prejudice, especially to the appellant, cannot be gainsaid.
It
is only proper therefore that the matter be remitted for a proper
consideration of the dispute in terms of the Act and for the
adduction of evidence on the values of the properties in dispute.
Accordingly,
it is ordered as follows:
1.
The appeal is allowed with costs.
2.
The judgment of the court a
quo
is hereby set aside.
3.
The matter is remitted for a proper consideration of the matter in
accordance with the provisions of the Act and for the adduction of
evidence on the values of the immovable properties.
GARWE
JA: I
agree
PATEL
JA: I
agree
Katsande
& Partners,
appellant's legal practitioners
Hungwe
& Partners,
respondent's legal practitioners
