MAVANGIRA J: This
is a divorce action in which the plaintiff issued summons seeking a
decree of divorce and other ancillary relief. She also seeks an order
for the custody of the two minor children of the marriage with the
defendant being allowed reasonable access. She also seeks an order
that the defendant contributes towards the children's maintenance
by paying all their school fees and all other educational related
expenses until they complete their academic and tertiary or
professional studies. In addition she prays that the defendant pays a
sum of Z$250,000,000-00 (then) per child until each child attains the
age of 18 or becomes self-supporting, whichever occurs first.
The plaintiff
further seeks an order for the distribution of the parties' movable
and immovable assets. She seeks an order that each party be awarded a
50% share in respect of House No. 2822 Mainway Meadows, Prospect,
Waterfalls, Harare being the matrimonial home. She seeks an order
that each party be awarded a 50% share in respect of Stand 1365
Uplands, Harare.
The parties' joint pre-trial conference minute indicates that the
parties were agreed that their marriage has irretrievably broken down
and that a decree of divorce should be granted. It also reflects how
they have agreed to share their movable property. The minute further
indicates that the matter is referred to trial on two issues;
(i) the first
being stated as which of the parties should be awarded custody of the
minor children and what access should be offered the non-custodian
parent and the quantum of maintenance to be paid by the non-custodian
parent.
(ii) The
second is stated as being the question of what is a just and
equitable distribution of the immovable property.
From the parties evidence before this court it is common cause that
the parties reached agreement, subsequent to the pre-trial
conference, on the issue of custody, access and maintenance of the
minor children. The parties agreed that the plaintiff be awarded
custody of the minor children whilst defendant would have reasonable
access during alternative weekends, school holidays and public
holidays.
They agreed that the defendant was to pay maintenance for the minor
children by making equal contribution with the plaintiff to all
school fees and educational expenses. The defendant would also buy
casual clothing for the children at least twice a year.
The parties agreed that there is no need for a maintenance order in
favour of either of them.
The only outstanding issue for this court to determine was therefore
the distribution of the immovable property.
In her pleadings, the plaintiff's position was that the two
immovable properties be shared equally between the parties. In her
evidence she then altered her position, suggesting that Stand 1865
Uplands, Waterfalls be awarded to the defendant and that she be
awarded the other property.
In his plea the defendant suggested that Stand 1865 Uplands,
Waterfalls could not be distributed as it was no longer available as
matrimonial property, the parties having disposed of it sometime in
the past.
He suggested
that the Mainway Meadows property be shared in the proportions 10% to
the plaintiff and 90% to himself. At the trial his stance was that
the plaintiff be awarded 30% in the Mainway Meadows property and 70%
be awarded to him.
The parties were married on 1 June 1996. Thus their marriage had
subsisted for 13 years at the time of this trial.
The
plaintiff's evidence was to the effect that the parties contributed
equally towards the purchase and development of the Mainway Meadows
property. She said that they acquired both Stands in 2002.
The plaintiff
said that she was employed by Delta Corporation at the National
Breweries as a sales representative. The defendant was then employed
Agrifoods. She said that they both used to deposit their salaries
into one account, which is the money that they used to purchase both
Stands. She produced the title deeds for the Mainway Meadows property
and an agreement of sale for the Uplands Stand. She said that they
also used money made from their piggery project. She said that the
Mainway Meadows property was paid for in one payment while the
Uplands property was paid for in instalments.
She was unable to produce any proof for the payment for the Mainway
Meadows property but produced some receipts for several instalment
payments that were made for the Uplands property. All the receipts
are made out in the names of “William and Theresa Chigonde” or “W
and T Chigonde”.
The plaintiff
was asked to give detailed evidence of how the parties developed the
Mainway Meadows project. She said that from the projects that they
were running and from the joint deposits that they had, they had the
foundation laid. As they both used to go to work they would request
an uncle to buy the required materials. They used their Nissan
hardbody motor vehicle to ferry the materials to the Stand. Bricks
were purchased from a company called Beta bricks. Cement was
purchased from various outlets.
As the parties were lodgers, they decided to fit in the doors for
three rooms which they have been using since December 2007. They
decided to move in even though the house was not yet fully developed.
The plumbing fixtures were and are still to be fitted. The floors
were and are still to be laid. She said that most of the material for
construction was purchased in the defendant's name. However
sometimes when they sent other people to purchase building materials
on their behalf, some of the receipts would be titled “Mrs”
although most were titled “Mr”. She produced one receipt issued
out in the name “Mrs Chigonde” which she said was for the
purchase of timber. She said that she would also go to the site
during the construction and would supervise the work and ensure that
there was food for the builders. She would do so using a company
vehicle, a Mazda B1800 which would also be used in ferrying materials
and other things for the construction.
The plaintiff said that she left employment and the defendant later
also left employment. With their respective pensions they then
jointly set up a butchery business. The butchery business was very
successful. She however went back into formal employment while the
defendant continued running the butchery business.
Concerning the defendant's contention that she did not make any
contributions as she was attending school at the relevant time, the
plaintiff said that she disputed that. She said that after getting
employment at Delta in 1996, she later undertook studies that were
relevant for the department that she was working in and the company
took responsibility for her fees. She attended school on a part-time
basis.
As she worked in the Marketing department she would travel and would
be paid certain allowances over and above her salary. She was also
entitled to be given a certain quantity of the product that they
marketed, clear beer. Instead of taking it she would sell it so that
she could use the money.
Before the parties moved into the Mainway Meadows property they
jointly attended to the payment of rentals for their accommodation
and food for the family. From the allowances that she used to get at
work, she usually took care of the children's clothing.
Plaintiff said that she did not understand why the defendant
undermined her contribution. She said that when the parties were in
formal employment the defendant generally earned slightly more than
she did. She said that in the event of the court awarding her a
percentage of the Mainway Meadows property which is the matrimonial
home, she believes that she can raise money to buy out the
defendant's share.
In his evidence the defendant said the plaintiff's contribution was
minimal and that his contribution was greater in the purchase and
development of the Mainway Meadows property.
He produced a bundle of numerous receipts for the purchase of
building materials for the Mainway Meadows house. Many of the
receipts are issued to “Mr Chigonde”, some to “W. Chigonde”
or “William Chigonde”. Some are in the name “Maha” or “Maha
Chigonde” and others are cash sale receipts on which the
purchaser's name is not reflected. Some are merely written
“Chigonde”, and some “Mr M Mandibatsira”.
The defendant said that the proceeds realised from the piggery
project were not significant and denied that these were used for the
development of the Mainway Meadows property. He said that in any
event when the piggery project was initially set up the plaintiff had
no interest in it and she told him to do it by himself. He thus used
to travel alone to Nyanga to his parents home where the project was
set up. She later put in minimal effort into the project.
With regard to
the Uplands property he said that he got into a payment arrangement
scheme with the seller. The property cost $21 million dollars. He had
some money in his account and initially he made a Bank cheque of $14
million. He then made out a personal cheque of $7 million. He had
acquired a loan from Yambukai Holdings and also from Rapid Discount
House. The plaintiff did not make any contribution. He also disputed
that the plaintiff had her money deposited into his account.
The defendant said that although he was offering the plaintiff 30% of
the Mainway Meadows property, it was clear to him that her
contribution was not to such a level. It was much less. He said that
he was also now offering her the Uplands property exclusively. He
said that in the event that the court granted him 70% of the Mainway
Meadows property, as he suggested, he would be able to buy the
plaintiff's 30% share out.
The defendant said that he used to buy most of the family's
groceries and the children's clothes. The plaintiff would sometimes
contribute and sometimes he would give her money to buy the
children's clothes when she indicated that she had seen some
children's clothes which she thought were good.
During the time that they were living in rented accommodation he
would pay the rentals and other expenses without any contribution
from the plaintiff.
The defendant confirmed the plaintiff's evidence that at the time
they got married they were renting one room in Mbare. He disputed the
plaintiff's evidence that they had built a rural home in Nyanga and
said that they extended his parent's house into a four roomed
house.
None of the parties gave evidence as to the value of the Mainway
Meadows house. However, a copy of the title deed for the property
which was produced by the plaintiff reflects that the plaintiff and
the defendant are registered as joint owners of the Mainway Meadows
property. The agreement of sale for the purchase of the Uplands
property reflects that the plaintiff and the defendant are joint
purchasers of the property.
In Takafuma
v Takafuma
1994 (2) ZLR 103 at 105 to 106A McNALLY JA stated:
“The
registration of rights in immovable property in terms of the Deeds
Registries Act [Cap
139]
is not a mere matter of form. Nor is it simply a device to confound
creditors or the tax authorities. It is a matter of substance. It
conveys real rights upon those in whose name the property is
registered ….”
McNALLY JA proceeded at 106B-E:
“The duty of
account in terms of section 7 of the Matrimonial Causes Act involves
the exercise of a considerable discretion, but it is a discretion
which must be exercised judicially.
The court does
not simply lump all the property together and then hand it out in as
fair a way as possible. It must begin, I would suggest, by sorting
out the property into three lots, which I will term 'his', 'hers'
and 'theirs'. Then it will concentrate on the third lot marked
'theirs'. It will apportion this lot using the criteria set out
in section 7(3) of the Act. Then it will allocate to the husband the
items marked 'his', plus the appropriate share of the items
marked 'theirs'. And the same to the wife.
That is the first stage.
Next it will
look at the overall result, again applying the criteria set out in
section 7(3) and consider whether the objective has been achieved,
namely, 'as far as is reasonable and practicable and, having regard
to their conduct, is just to do so, to place the spouses …. in the
position they would have been in had a normal marriage relationship
continued…'
Only at this stage, I would suggest, should the court consider taking
away from one or other of the spouses something which is actually
'his' or 'hers'.”
As the parties are the joint registered owners of the Mainway Meadows
property they must be taken to be the owners or holders of equal and
undivided shares in the property. Although not dependent on it, this
also accords with the plaintiff's evidence as to the parties
contributions to the acquisition and development of the property.
The defendant on the other hand exhibited a determination to greatly
minimise the plaintiff's contribution in respect of this property
and also in regard to the welfare of the family almost to the point
of such being non-existent. In this respect he did not fare very well
particularly under cross-examination. I find his evidence in this
regard to be incredible and highly improbable.
On the evidence before the court I find that the two immovable
properties fall into the “theirs” category.
In terms of
section 7(1) of the Matrimonial Causes Act, in granting a divorce,
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.
In terms of
section 7(4), in making the said order the court shall have regard to
all the circumstances of the case, including the following:-
(a) the income
generating 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; and
(g) the
duration of the marriage.
It is in having regard to the above the court is enjoined to
“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 had a normal marriage
relationship continued between the spouses”.
The plaintiff is going to be the custodian parent of the minor
children of the marriage. She indicated that any move from the
matrimonial home could mean a disruption in their schooling as they
would probably need to change schools. The parties are currently
living in the matrimonial home whose construction is not yet
complete. The Uplands property is still undeveloped. The plaintiff
has a greater need for the home in which to raise the minor children.
Whilst both parties indicated that they each desired and had the
capacity to buy out other's share, it appears to be equitable that
the plaintiff be given the first option to purchase the defendant's
share in the Mainway Meadows property.
In view of the determination made above in relation to the Mainway
Meadows property, I am of the view that it would be equitable that
the parties also be each apportioned a half share in the Uplands
property. It would also be equitable in my view for the defendant to
be given the first option to purchase the plaintiff's half share in
the Uplands property.
In their evidence both parties confirmed that they had agreed on the
distribution of their movable assets in the manner reflected in their
joint pre-trial conference minute. This court's order will
therefore reflect the same.
The plaintiff seeks an order that each party bears its own costs. The
court will order accordingly.
In the result, it is for the above reasons, ordered as follows:-
IT IS ORDERED:
1. That a
decree of divorce be and is hereby granted.
2. That
custody of the minor children Rumbidzai Chigonde born 14 May 1997 and
Samuel Chigonde, born 1 August 2002 be and is hereby awarded to the
plaintiff.
3. That the
defendant shall be entitled to reasonable access to the said minor
children during alternate weekends and alternate school and public
holidays.
4. That the
parties shall contribute equally to the children's school fees and
educational expenses. The defendant shall also buy casual clothing
for the children at least twice every year.
5. The movable
assets of the parties shall be divided as follows:-
(1) The
plaintiff be and is hereby awarded as her sole and exclusive property
the following items:-
(a) bedroom
suite and bed.
(b) 5 piece
dining room suite.
(c) one bed.
(d) kitchen
cabinets.
(e) lounge
suite sofas.
(f) hoover and
two carpets.
(g) upright
fridge.
(h) computer
and laser-jet printer.
(i) four plate
stove.
(j) microwave.
(k) one book
shelf.
(l) wardrobe.
(m) television
and ID cabinet.
(n) six
blankets.
(o) kitchen
table and chairs.
(p) kitchen
utensils.
(2) The
defendant be and is hereby awarded as his sole and exclusive property
the following items:
(a) Nissan
Hardbody motor vehicle.
(b) three
piece sofa (rural + one piece sofa).
(c) seven
goats and eleven head of cattle.
(d) one book
shelf.
(e) freezit
making machine.
(f) gun
cabinet.
(g) six
blankets.
(h) carpet.
(i) chiller
and scale for meat.
(j) one bed.
(k) generator.
(l) meat
cutter.
6. The parties' immovable assets shall be distributed as follows:
(A)
Stand 2822 Prospect Township of Subdivision M Prospect Township (the
Mainway Meadows property the matrimonial home)
(1) The parties are each awarded 50% of the value of this property.
(a) if the parties cannot, within 10 days of the date this order,
agree on a valuator, the Registrar shall appoint a valuator.
(b) The valuator shall as soon as possible, value the property and if
there are any outstanding obligations, shall indicate the net value
thereof.
(c) The costs of valuation shall be paid by both parties in equal
shares.
(d) The plaintiff shall pay to the defendant within six (6) months of
the date of this order, 50% of the net value of the property.
(e) If the
plaintiff fails to comply with paragraph 6(A)(1)(d) then the
defendant is given the option to pay to the plaintiff 50% of the net
value of the property within six (6) months thereafter.
(f) In the event that neither party is able to pay out the other in
terms of subparagraphs (d) and (e) above, then the property shall be
sold by an independent estate agent appointed by the Registrar from
the Registrar's Panel of Estate Agents and the net proceeds shared
equally between the parties.
(B) Stand 53 of the remaining extent of Picnic of Subdivision A of
Waterfalls measuring 495 square metres (the Uplands property)
(1) The parties are each awarded 50% of the value of this property.
(a) If the parties cannot, within 10 days of the date of this order
agree on a valuator, the Registrar shall appoint a valuator.
(b) The valuator shall as soon as possible value the property and if
there are any outstanding obligations, shall indicate the net value
thereof.
(c) The costs of valuation shall be paid by both parties in equal
shares.
(d) The defendant shall pay to the plaintiff within six (6) months of
the date of this order 50% of the net value of the property.
(e) If the
defendant fails to comply with paragraph 6(B)(1)(d) then the
plaintiff is given the option to pay to the defendant 50% of the net
value of the property within six (6) months thereafter.
(f) In the event that neither party is able to pay out the other in
terms of subparagraphs (d) and (e) above, then the property shall be
sold by an independent estate agent appointed by the Registrar from
the Registrar's Panel of Estate Agents and the net proceeds shared
equally between the parties.
7. Each party shall pay its own costs.
Goneso & Associates,
plaintiff's legal practitioners
Manase & Manase,
defendant's legal practitioners
