MUSAKWA J: Plaintiff
issued summons in which he sought a decree of divorce, custody of
minor children, division of matrimonial property and an order that
each party bears their own costs.
On the other hand the defendant
counter-claimed for a decree of divorce. She also claimed that she be
allowed to reside at the matrimonial home, Number 41 Ridgeway North,
Highlands, Harare until the youngest child attains the age of
eighteen years or becomes self supporting, whichever occurs earlier
and thereafter the house should be sold and the proceeds shared
equally. In addition she claimed that until the house is sold the
parties should contribute equally towards the maintenance of the
house and payment of rates.
The parties got married in 1998 and they have five children born of
the marriage. At pre-trial conference stage they agreed that the
marriage had irretrievably broken down and that custody of the
children be awarded to the defendant. The parties also reached a
settlement on the sharing some of the movable assets that were
acquired during the course of the marriage. Referred to trial were
issues on the division of immovable property, maintenance in respect
of the minor children and who should be awarded the Chrysler motor
vehicle.
In his testimony plaintiff confirmed that he will be responsible for
the children's schooling needs and clothing.
He stated that he was solely
responsible for the purchase of the matrimonial home, which is Number
41 Ridgeway, Highlands, Harare. Previously he had purchased a
property in Marlborough through a sale conducted by the Sheriff. The
property had been registered in defendant's name. Although he had
paid the transfer costs and the mortgage, he acknowledged that
defendant's employer had provided the letter of guarantee. The
property was in a dilapidated state and he had it renovated.
Defendant's contribution was said to be in the form of planting
flowers although the plaintiff hired landscapers to plant the lawn.
Plaintiff explained that the
property was registered in defendant's name to protect the
interests of her employers who had provided the guarantee. He had not
been able to provide the twenty-five percent deposit required by the
Building Society. There had been problems in securing the guarantee
and defendant had given up pursuing it with her employer.
In 2000 the plaintiff sold the Marlborough property for
$1,650,000.00. The balance due to CABS was $536,913.00. He also paid
the agent's commission. He then secured a mortgage bond with
Beverly Building Society for the purchase of the Highlands house. He
paid the deposit and met all the mortgage repayments. He was also
responsible for the maintenance of the property. According to
plaintiff defendant only provided the curtaining.
Plaintiff also testified that
when he was employed by the Public Service he was allocated a three
bed roomed flat, described as Number 91 Block 7, Francis Flats,
Belvedere. At some stage he contributed towards a housing scheme run
by the then Ministry of Local Government and National Housing (now
Ministry of Housing and Social Amenities). The contract with that
Ministry entailed the provision of a Stand, a flat, or a house. He
was allowed to occupy the flat until the contractual obligations of
the Ministry were fulfilled. He in turn offered the defendant
occupation of the flat and she declined.
As regards the Highlands property
he indicated that he offered the defendant ten percent share but she
declined. It was his evidence that the defendant acquired a
residential Stand through her employers. However, he could not give
particulars of the Stand.
On maintenance for the children he testified that he meets all their
needs with the defendant making minor contributions. He pays all
school expenses, buys their groceries and clothing. He undertook to
continue doing so. Three of the children are at boarding school and
the fourth one was expected to join them in 2009. Since the children
would only be at home for about three months every year he offered to
provide US$150 in maintenance for the youngest child. In the
alternative he offered to pay a nominal sum of $100,000,000.00. It
was his contention that the defendant can take care of herself.
As regards the motor vehicle at the centre of the dispute, the
plaintiff testified that in her plea the defendant was claiming an
Opel Astra and a Mitsubishi Pajero. The claim in respect of the
Chrysler only arose at the pre-trial conference and there was no
amendment to the plea. According to him the defendant had initially
claimed that he purchase for her a good second hand Toyota Corolla
vehicle.
Plaintiff stated that he regularly buys vehicles for resale. When he
purchased the Chrysler it was meant for resale. He disputed that he
purchased it for the defendant and was adamant that it was not shown
to the children because they were at school. He described it as an
expensive vehicle to use on a day to day basis and that the defendant
cannot afford it. Once in a while he gave the vehicle to the
defendant for the convenience of the children. He mainly uses it for
collecting the children from boarding school. He offered the
defendant several cars and she declined them. He cited as an example
his offer to purchase for her a Peugeot 306 vehicle that was being
sold by her employers.
Under cross-examination by the defendant the plaintiff stated that
she had refused to pursue the issue of a guarantee from her employer
until he took it up with a Mr Huta.
In respect of motor vehicles he also conceded that he owns a Mazda
T3500 and a Bedford truck which he uses for his commercial
activities. The plaintiff then closed his case.
The defendant also testified in her case.
She stated that when she was working for the Export Processing Zone
they were offered a guarantee for purchasing a house in Marlborough.
The plaintiff was responsible for the transfer fees and the mortgage
repayments. The plaintiff later sold the house.
At the time of the hearing this matter the plaintiff had moved out of
the matrimonial house.
As regards the matrimonial house she has resided there for the past
eight years. She does not want it sold. She is claiming a fifty
percent share of the house. The house is said to be in a state of
disrepair. This is because the plaintiff has not had it painted since
they occupied it. In addition she claimed that the plaintiff
willfully damaged the doors, windows and wall.
Regarding the flat it was her testimony that it is currently occupied
by plaintiff's sister. It appears there is a legal dispute
regarding the flat. According to the defendant every time an attempt
has been made to remove the plaintiff's sister the plaintiff has
had recourse to the courts. That is why she is not interested in the
flat.
In respect of the vehicles it was defendant's testimony that apart
from the Chrysler the plaintiff also has Mercedes “C” and “E”
class, a Jaguar and a Mazda T3500. It was further her evidence that
up to about a week prior to this hearing she had been using public
transport. She had used the Chrysler for about a week. She was of the
view that plaintiff can afford the expenses related to her use of the
vehicle.
The defendant did not want the plaintiff to have much access to the
children. This was because the plaintiff had prevented her from
visiting the children at their boarding school in Chipinge. She
claimed that the plaintiff visits the children in the company of his
girlfriend and this upsets the children. She prefers that the
plaintiff be granted access to the children during alternate weekends
commencing from Friday evening. During school holidays she prefers
that the plaintiff be with the children for a week.
On maintenance the defendant testified that the plaintiff pays school
fees and buys uniforms. However, in respect of groceries it was her
evidence that he provides as and when he feels. She prefers that the
plaintiff pays her cash. She initially put the figure at US$2,500.00
but she later revised this to US$600.00. On clothing she indicated
that she requires $500 per child or the plaintiff can purchase
clothing for the children three times a year.
The amount claimed by the defendant was not backed by any expenditure
incurred in the past. The figures are unrealistic and do not take
into account what plaintiff provides as conceded by herself as will
be highlighted in the course of the judgment.
On medical aid and prescriptions the defendant testified that she
requires US$200. This is because medical health providers demand cash
upfront. This is despite the fact that she and the plaintiff are
under her employer's medical aid cover. The claim by defendant
appears to be premised on the erroneous assumption that the children
will visit a doctor every month. No evidence was adduced that the
children need constant medical attention.
Under cross-examination the defendant conceded that the plaintiff
always pays the children's school fees. Although she sought to
claim that as at the time of this hearing the groceries purchased by
the plaintiff were running out, in essence she did not dispute that
the plaintiff provides groceries in bulk. It was also not in dispute
that the plaintiff provides for the children's school uniforms and
that the defendant only purchased uniforms for the children in 2001.
On the other hand the defendant maintained that until the children
went to boarding school plaintiff gave her a vehicle for use with the
children. The vehicles she used were either a Mercedes Benz or the
Chrysler. Although she had stated that she used to take the children
to school she did not dispute it when it was pointed out to her that
in previous litigation on the provision of a vehicle she had not
disputed that it was the plaintiff who took the children to school.
Her explanation was that she did not think that it was an issue. It
also came out from the cross-examination that in the previous
litigation the defendant had sought to be provided with a Pajero
vehicle.
There was also the issue of the children at boarding school resenting
the presence of the plaintiff's girlfriend during school visits.
Although the defendant had stated that one of the teachers had drawn
the issue to her attention she could not dispute that the plaintiff
had communicated with the headmistress on the matter. She also
conceded that the headmistress had not raised any issue.
The defendant also conceded that the plaintiff was responsible for
paying water, electricity and telephone bills.
Although the plaintiff put it to
the defendant that she owns a residential Stand, this was denied.
In considering this matter, I must point out that the plaintiff was
forthright in his testimony. It was not disputed that he always
provides groceries, school fees, uniforms and casual clothing for the
minor children. The children are at boarding school and will only be
with the defendant for about two weeks during the school holidays.
Therefore maintenance in the sum of US$150 per month appears
reasonable in the circumstances.
The defendant did not provide evidence regarding the medical aid
contributions for the minor children. In her counter-claim she sought
an order that plaintiff pays monthly premiums equivalent to the CIMAS
Private Hospital Scheme. She however confirmed that medical aid cover
is already being met by her employer. She did not explain why the
type of medical cover being provided has to change. It would be fair
though, to order that plaintiff contributes towards costs of
prescriptions, consultation fees and shortfalls as and when they
arise.
Generally the courts strive to ensure that the parties and children
maintain a similar life style to the one they enjoyed prior to
divorce.
In her counter-claim, defendant claimed that she be provided with a
good second-hand Toyota Corolla. She did not amend her papers to
claim the Chrysler. I was not persuaded that she is entitled to the
Chrysler. The children are at boarding school and will only be with
the defendant for half of each school holiday. The plaintiff
expressed his willingness to provide the defendant with a Toyota
Corolla or another equivalent.
In respect of the immovable properties I will start with the flat.
The plaintiff's evidence was
that he contributed to a housing scheme called “Pay for Your Own
Housing Scheme”. In terms of the contract he was to be provided
with a Stand, a house or a flat. The Ministry of Housing and Social
Amenities acknowledged its obligation and allowed him to retain
occupation of the flat which he leased when he was employed in the
Public Service. It is this flat he said he offered defendant for her
occupation and she declined.
No documentation was tendered to confirm the status of the property.
On the evidence available the flat does not belong to the parties and
cannot constitute matrimonial property. At most plaintiff is holding
the flat as a lien.
In his pleadings the plaintiff made no reference to the matrimonial
home. In other words, he made no claim as regards how it should be
awarded.
On the other hand the defendant counter-claimed for an order that she
be allowed to reside in the matrimonial home until the youngest child
attains the age of eighteen years or becomes self-supporting.
Thereafter the property should be sold and the net proceeds shared
equally.
The starting point to note is
that the Highlands property belongs to the plaintiff since it is
registered in his name. However, in accordance with section 7 of the
Matrimonial Causes Act [Cap
5:13] it is necessary
to consider the parties' respective direct and indirect
contributions. Section 7(1) of the Act provides that -
“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 assets be transferred from one spouse to the other;
(b)…………………………….”
On
the other hand section 7(4) provides that -
“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 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 other domestic duties;
(f) the duration of the
marriage;
and in so doing the court
shall endeavor 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.”
The case of Takafuma
v Takafuma 1994 (2)
ZLR 103 (S) is a well established authority on the application of
section 7 of the Matrimonial Causes Act in matrimonial disputes.
McNALLY JA had this to say at page 106 -
“The
duty of a court 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 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 that stage, I would suggest, should the court consider taking away
from one or other of the spouses something which is actually 'his'
or 'hers'.”
The plaintiff did not give details of the source of funds for the
acquisition of the Highlands property save to state that he was
solely responsible for servicing the mortgage bond.
What is not in dispute is that when the parties acquired the
Marlborough property the plaintiff secured a guarantee from
defendant's employers. This would constitute an indirect
contribution towards the purchase of the property by the defendant.
It is immaterial that the plaintiff could have secured the funds for
the deposit elsewhere. The undeniable fact is that they used
defendant's benefit from her employer to qualify for the mortgage
bond. Defendant's share in the circumstances amounts to fifty
percent.
When the Marlborough property was sold the mortgage balance stood at
$536,913.00. The house was sold for $1,650,000.00. The plaintiff did
not explain what happened to the balance of the proceeds of the sale
of the house after clearing the mortgage. I can only note that the
balance would have been substantial. With the plaintiff not
explaining the source of funds for the deposit in respect of the
Highlands property, the probability is high that it came from the
remainder of the proceeds from the sale of the Marlborough property.
The defendant's share in the Highlands property by virtue of the
earlier indirect contribution to the Marlborough house would still
remain at fifty percent.
Although no specific details were given it was not disputed that
plaintiff is in a better financial position than defendant. Taking
into account the standard of living enjoyed by the parties it cannot
be overlooked that the children are entitled to a decent home which
is not significantly different from the Highlands house. I have
already pointed out that the plaintiff did not testify on how he
wants the matrimonial home shared. Neither did he make any claim in
the pleadings. He has already moved out.
Taking into account the needs of the children and in the exercise of
my discretion I am satisfied that the defendant is entitled to stay
in the matrimonial home until the youngest child attains the age of
eighteen years or becomes self-supporting, whichever occurs sooner.
By virtue of such an award her share of the immovable property will
be diminished and in my discretion I will reduce it by twenty
percent. This is because defendant is going to enjoy the use of the
property for the next thirteen years. I will also take into account
that plaintiff has a right to some un-ascertained immovable property
against the Ministry of Housing and Social Amenities. Since the
children are going to live in the house during part of their school
holidays it is only fair that the parties share the rates and
maintenance costs for the house equally as claimed by the defendant
in her counter-claim.
In the result it is ordered as follows -
1. That a decree of divorce be
and is hereby granted.
2. That custody of the minor
children namely, Fanuel Puwayi Chiutsi (born 12th
December 1995), Takudzwa Candace Chiutsi (born 8th
August 1997), Tabonga Lindsay Chiutsi (born 10th
July 2000), Tristan Hunter Ngaakudzwe Chiutsi (born 29th
January 2002) and Hayley Chiutsi (born 19th
January 2006) be awarded to the defendant with plaintiff having
access upon reasonable notice to defendant.
3. That plaintiff provides
maintenance in the sum of $150 per month in addition to the provision
of groceries, school fees and clothing for the minor children.
4. That the minor children shall
continue to be under defendant's medical aid cover with plaintiff
paying for any consultation fees, shortfalls and prescriptions.
5. Each party shall keep as their
sole property the movable effects in their respective possession.
6. That plaintiff shall purchase
a serviceable Toyota Corolla motor vehicle with a report from
Automobile Association of Zimbabwe and have it registered in
defendant's name within sixty days of this order.
7. The defendant is granted the
right of use of House number 41 Ridgeway North, Highlands until the
youngest child attains the age of eighteen years or becomes
self-supporting, whichever occurs earlier.
8. That upon the youngest child
attaining the age of eighteen years or becoming self-supporting
plaintiff shall pay defendant thirty percent of the value of the
house described in paragraph 7 above.
9. In the event of the plaintiff
failing to pay defendant her share as ordered in paragraph 7 above,
the house shall be sold to best advantage within two months with
plaintiff and defendant sharing the proceeds in the ratio of seventy
percent and thirty percent respectively.
10. That each party shall bear
its own costs.
