Divorce
Action
CHITAKUNYE
J:
The plaintiff and defendant were joined in holy matrimony on 25 March
1972 at Harare in terms of the Marriages Act, 1964 (now Chapter
5:11). Their marriage still subsists.
The
marriage was blessed with five children who are now adults and self
sustaining.
During
the subsistence of the marriage the parties acquired some movable
assets and an immovable asset namely, No. 17 Dengu Street, Zengeza 1,
Chitungwiza.
On
17 May 2014 the plaintiff sued defendant for a decree of divorce and
the distribution of the assets acquired during the subsistence of the
marriage between the parties.
The
plaintiff alleged that the marriage has irretrievably broken down to
such an extent that there are no prospects of the restoration of
normal marital relations more particularly in that:
1.
The parties have been living separate and apart from one another
since November 2003 and neither party has any intention of restoring
cohabitation to the other;
2.
The parties have lost all love and affection for one another and wish
to be divorced from each other.
The
plaintiff's claim was thus for a decree of divorce on the ground of
irretrievable breakdown of the marriage and a distribution of the
assets of the spouses as follows:
1.
That each party retains the movable property in his/her possession.
2.
That the immovable property namely No.17 Dengu Street, Zengeza 1,
Chitungwiza be distributed in equal shares as between the parties.
3.
That defendant pays costs of suit.
The
defendant, whilst admitting that the marriage has irretrievably
broken down, laid the cause for such breakdown on the plaintiff.
He
denied responsibility for the breakdown of the marriage.
The
defendant agreed with the plaintiff that on the movable property each
party should retain the property in his/her possession.
He
however disputed the distribution of the immovable property. In his
counter claim defendant sought an order that:
1.
A decree of divorce be granted;
2.
Each party retains movable property in their possession;
3.
The immovable property namely number 17 Dengu Street, Zengeza 1,
Chitungwiza be declared the sole and exclusive property of the
defendant; lastly
4.
Each party should pay their own costs.
At
a pre-trial conference held on 15 November 2013, the issues for
determination at trial were identified as:
1.
Whether or not a decree of divorce should be granted.
2.
Whether or not the plaintiff is entitled to a half share in the
matrimonial home known as 17 Dengu Street, Zengeza 1, Chitungwiza.
On
the trial date the plaintiff gave evidence in support of her claim
for a decree of divorce and an order for the distribution of assets
of the spouses with each party getting a half share of the immovable
property in question.
Though
in his pleadings the defendant had conceded that the marriage had
irretrievably broken down, and that a decree of divorce should be
granted, on the date of trial he seemed to change that stance.
The
defendant now said that a decree of divorce should not be granted. He
contended that he stood by his marriage vows that they should only be
separated by death.
The
defendant's stance served to confirm the need for court to make a
determination as to whether the marriage has irretrievably broken
down to an extent that such an extent that there is no prospect of
restoration of a normal marriage relationship and so a decree of
divorce should be granted.
1.
Whether or not a decree of divorce should be granted
Section
5(1) of the Matrimonial Causes Act [Chapter 5:13] states that:
“An
appropriate court may grant a decree of divorce on the ground of
irretrievable breakdown of the marriage if it is satisfied that the
marriage relationship between the parties has broken down to such an
extent that there is no reasonable prospect of the restoration of a
normal marriage relationship between them.”
In
Kumirai v Kumirai 2006 (1) ZLR 134 (H) at p136A-E MAKARAU J(as she
then was) aptly put the legal position as that:
“In
view of the fact that the breakdown of a marriage irretrievably is
objectively assessed by the Court, invariably, where the Plaintiff
insists on the day of the trial that he or she is no longer desirous
of continuing in the relationship, the court cannot order the parties
to remain married even if the Defendant still holds some affection
for the Plaintiff. Evidence by the Plaintiff that he or she no longer
wishes to be bound by the marriage oath, having lost all love and
affection for the defendant, has been accepted by this Court as
evidence of breakdown of the relationship since the promulgation of
the Matrimonial Causes Act in 1985. So trite has the position become
that one hardly finds authority for it.”
If,
as in this case defendant is to succeed in his assertion that the
marriage has not irretrievably broken down and so a decree of divorce
should not be granted, the defendant must adduce evidence showing
that after the issuance of summons the parties have found each other
and are now living in the manner of husband and wife.
Sheer
hope or desire by defendant that parties should remain bound by their
marriage vows is not adequate.
There
are basically two aspects to be considered in determining whether a
marriage has irretrievably broken down. These are:
1.
Whether the marriage relationship is no longer in its normal state.
2.
Whether there are any reasonable prospects of restoration of the
normal marriage relationship.
Where
the evidence adduced shows that there is no longer a normal marriage
relationship in the way court will be inclined to grant a decree of
divorce.
In
casu, the pleadings show that the relationship between the parties is
no longer in its normalcy. The pleadings show that the parties have
the parties relate and that there are no prospects of restoration of
a normal marriage relationship, not been sharing bed since about
November 2003 and neither party has taken steps to restore
cohabitation.
There
is no denying that parties have lost love and affection for each
other.
In
their evidence the parties confirmed as much.
The
plaintiff testified that though they had been living under the same
roof they have been sleeping in separate rooms since about 2002. They
last enjoyed conjugal rights in 1979.
Whilst
in his plea defendant admitted that the parties had been separated
for the period stated in the summons, in his evidence in court he now
seemed to say that they last enjoyed conjugal rights in 2012.
Upon
being questioned on this, defendant was not confident of that date.
He
however confirmed that the plaintiff left the matrimonial home in
2012 and since then parties have been on separation.
The
defendant could not explain his latest stance vis–a-vis his own
admissions in his plea and counter claim.
It
is also common cause that each party obtained a protection order
against the other. Clearly they have become incompatible and unable
to live with each other as husband and wife.
The
defendant's contention that a decree of divorce should not be
granted was purely based on the marriage vows the parties took. As
far as he is concerned they can only be separated by death.
I
am of the view that defet on the other hand asked for that
propertyndant's desire for the continuation of the marriage is not
bona fide. He clearly has not done anything to express desire to
reconcile with his wife. All he is saying is that because we took a
vow that we will only be separated by death, since neither of us is
dead, the marriage must go on. He is not applying his mind to the
fact that the relationship that now exists between them is not
conducive to the continuation of a normal marriage relationship.
I
am satisfied that the evidence adduced confirms with certainty that
the marriage relationship has irretrievably broken down and a decree
of divorce must be granted.
2.
Whether or not the plaintiff is entitled to a half share in the
matrimonial home known as 17 Dengu Street, Zengeza 1, Chitungwiza
The
plaintiff's claim was for the only immovable property of the
spouses to be distributed equally between the parties. The defendant
to be declared as his sole and exclusive property.
The
division and distribution of assets of the spouses at divorce is
governed by section 7 of the Matrimonial Causes Act, [Chapter 5:13].
Section 7(1)(a) of the Act provides that:
“Subject
to this section, in granting a decree of divorce, judicial separation
or nullity of marriage, or at anytime 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.”
In
making the order for the division, apportionment or distribution of
assets of the spouse court has a wide discretion. Section 7(4) of the
Act provides some guiding factors as follows:
“In
making an order in terms of subsection (1) an 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 is 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 by each spouse to the family,
including contributions made by looking after the house 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; 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 the
children in the position they would have been in had a normal
marriage relationship continued between the spouses.”
It
is evidently clear that court is enjoined to consider all the
circumstances of the case.
In
casu, it is common cause that the property in question was allocated
to the couple upon production of their marriage certificate. It
appeared agreed that during the material time the production of a
marriage certificate or at least proof of marriage was a requirement
for one to be allocated a house.
It
was agreed that the rentals paid was twelve dollars per month. Apart
from the rentals no particular purchase price was paid.
Upon
listening to the evidence by the parties there was really nothing of
significance either party contended as a basis for a great
differentiation in the distribution of the property.
For
instance, whilst defendant was the only one in formal employment, he
acknowledged that the plaintiff did engage in some income generating
activities. Though he tried to down-play the significance of such
activities he nevertheless acknowledged that the plaintiff
contributed indirectly to the needs of the family.
By
implication the defendant appreciated that the plaintiff deserved a
share in the property.
He
was however unable to state what share he deemed fair and reasonable
taking into account the circumstances of this case.
The
defendant could not justify his claim to be declared the sole and
exclusive owner of the property despite his own admission that the
plaintiff deserved a share in the property.
I
am of the view that taking into account all the circumstances of the
case including the duration of the marriage, needs of the parties,
and the manner of acquisition of the property, a fair and equitable
distribution of the immovable property would be an equal share for
each spouse.
The
fact that the plaintiff may not have made a direct financial
contribution is outweighed by the indirect contribution she made over
the four decades of marriage. See Usayi v Usayi 2003 (1) ZLR 684 (S);
Masiwa v Masiwa 2006 (1) ZLR 167 (S).
In
their evidence neither party expressed ability to buy out the other.
They both seemed financially incapable of buying out the other.
Despite
their expressed inability to buy each other out, I am of the view
that opportunity be availed to either party to buy out the other as
the first option. Where neither party is able to buy out the other,
the property will be sold to best advantage and the net proceeds
shared equally between the parties.
Accordingly
it is hereby ordered that:
1.
A decree of divorce be and is hereby granted.
2.
Each party shall retain the movable assets currently in his or her
possession.
3.
The plaintiff be and is hereby awarded a 50 per cent share in the
immovable property namely, No.17 Dengu Street, Zengeza 1,
Chitungwiza.
4.
The defendant is hereby awarded the remaining 50 per cent of the
above stated immovable property.
5.
The parties shall within 30 days of this order appoint a mutually
agreed estate agent to evaluate the property. Failing such agreement
the Registrar of the High Court is hereby directed to appoint such
agent from his list of registered estate agents.
6.
The defendant shall be given the first option to buy out plaintiff.
Should the defendant fail to exercise this option within 60 days from
the date of receipt of the evaluation report the plaintiff shall be
given the option to buy out the defendant within 60 days of
defendant's failure.
7.
The exercise of the option to buy out the other shall include the
reaching of an agreement of a payment plan within an agreed period.
8.
Should neither party exercise the option to buy out the other within
the 60 day period stated above, the property shall be sold to best
advantage by the estate agent appointed in terms of clause 5 above.
9.
The costs of evaluation and other related costs shall be shared
equally by the parties.
10.
The net proceeds therefrom shall be shared as per the parties
respective shares in the property.
11.
Each party shall bear their own costs of suit.
Atherstone
and Cook, plaintiff's legal practitioners
Legal
Aid Directorate, defendant's legal practitioners
