GUVAVA J: The plaintiff
and the defendant are husband and wife. They married each other on 8
January 1993 in terms of the Marriage Act [Cap
5:11]. The marriage
was blessed with three children, Frank (born 6 March 1993), Margret
(born 23 September 1997) and Emmanuel (born 24 June 2005). During the
subsistence of the marriage the parties acquired both movable and an
immovable property known as Stand 2209 Prospect Township of Stand
2899 Prospect Township measuring 860 square meters commonly known as
Stand 2209 Mainway Meadows, Waterfalls Harare (the property).
On 20 January 2007 the plaintiff issued summons seeking a decree of
divorce on the basis of irretrievable breakdown, custody of two of
the minor children and division of the parties' matrimonial assets.
The defendant whilst conceding that the marriage had broken down
disputed the reasons given by the plaintiff and counterclaimed for
custody and maintenance of the minor children. She also disputed the
suggested distribution by the plaintiff of their assets.
At pre-trial conference the parties agreed on the distribution of
their movable assets and decided to refer seven issues to trial. At
the hearing the parties abandoned three of the issues and only the
following issues were referred for determination:
1. Which of the parties should be awarded custody of the minor
children?
2. Which party is to be responsible for the maintenance of the minor
children and related matters?
3. Whether the Hyundai Excel motor vehicle registration number AAG
3526 constitutes matrimonial property which is subject to
distribution and if it constitutes matrimonial property, how is it to
be distributed?
4. What is the best way of distributing the matrimonial home between
the parties?
In terms of section 5 of the
Matrimonial Causes Act [Cap
5:13], a court may
grant a decree of divorce if it is satisfied that a marriage has
irretrievably broken down. The provision raises a presumption that a
marriage has broken down where the parties have lived apart for a
period in excess of twelve months.
The plaintiff gave evidence in support of his claim.
He testified that the marriage between him and the defendant had
broken down as they have not lived together as husband and wife since
December 2006. Although the summons was issued only a month after the
parties separated the defendant conceded that the marriage had indeed
broken down and there were no prospects of reconciliation between the
parties.
In the case of Ncube
v Ncube 1993 (1) ZLR
39 it was held that where the parties are consenting to divorce it
was not necessary for a court to hear evidence in order to ascribe
fault for the breakdown of the marriage. Where the parties are agreed
that the marriage has broken down the court must merely be satisfied,
on the evidence before it that the marriage has indeed irretrievably
broken down.
Indeed from the evidence of both the plaintiff and the defendant it
was quite clear that the parties no longer have any love or affection
for each other. I am therefore satisfied that the plaintiff is
entitled to the relief that he seeks.
In relation to the claim for custody the plaintiff testified as
follows.
He is employed as Deputy Director in the Ministry of Health and Child
Welfare. He earns a salary of Z$2,600 and a monthly allowance of
US$100. He has three minor children with the defendant who are Frank
aged 16, Margaret aged 12 and Emmanuel aged 4. He would like custody
of the two eldest children. The youngest child is 4 years old and he
would like the defendant to have custody of the child.
He offered to pay maintenance for the youngest child in the sum of
$18 per month. He stated that the eldest child was at a boarding
school and therefore only came home during the holiday. Frank at 16
years of age would require his father's directions as he enters into
manhood. He stated that Margaret was at a day school which is near
their home and if the defendant gets custody of her she would have to
change schools. In his opinion the defendant would be a bad influence
on the children. He has been looking after their needs in terms of
the children's fees and uniforms. All three children are on his
medical aid scheme.
The plaintiff further testified that the defendant was not a fit and
proper person to be awarded custody of the two elder children because
she had tried to poison him in the presence of the children. He
produced a report compiled by the Government Laboratories that showed
that they had examined a substance which contained camphor. The
report described camphor as a poison. He said that he had found the
substance in the possession of the defendant. He stated that the
camphor was mixed with his food and when he ate it he vomited. He
however stated that he did not go to hospital nor report to the
police until after about two months.
He also told the court that she had tried to commit suicide when his
mother wanted to take one of their children to the rural areas. In
his opinion she was so unstable that she could not be entrusted with
the children.
The plaintiff also called his father Mr Rugare Chinyavanhu.
He told the court that he was called to the plaintiff's home because
there was a dispute in December 2006. The plaintiff was alleging that
the defendant was trying to poison him. He stated that they called
the defendants parents so that she could be questioned in their
presence. He stated that she then told them that she had put a
substance in his food. In cross examination he said that the
defendant stated that she was trying to save her marriage. He
confirmed that the plaintiff and the defendant had had problems
previously and he had been called to assist.
The defendant testified that she is employed as a secondary school
teacher. She wanted custody of all the minor children. She stated
that she could pay for the children's daily needs and clothing but
she would want the plaintiff to look after their full school account.
In that respect she was no longer claiming a monthly allowance from
the plaintiff for maintenance for the minor children.
She denied that she had tried to poison the plaintiff. She stated
that whilst the plaintiff had vomited after eating the food she had
prepared he was drunk on that day and that could have caused him to
throw up. She admitted having burnt some essence which did contain
camphor for the purpose of chasing away evil spirits. She apologized
to the plaintiff's family for having burnt the incense without her
husband's permission and not for trying to kill him. She stated that
although the case was later reported to the police the prosecutor
withdrew charges against her and she was never prosecuted. She also
denied that she tried to commit suicide. She explained that she had
told the plaintiff that she was not happy with his mother taking the
child who was about one year and three months at the time to the
rural areas.
The defendant stated that she did not consider it proper to separate
the children as had been suggested by the plaintiff. One of the
children, Margaret, was a girl who was entering puberty and would
need her mother's love and guidance during that period. She also
stated that the plaintiff's moral conduct was reprehensible as he had
an adulterous relationship with their maid who was looking after the
children. She also states that he is unduly harsh with the children.
She gave an example of how he assaulted their eldest child with an
electric cable all over his body.
In determining an issue of custody the court must be guided by the
principle of what is in the best interest of the children.
In Hackim
v Hackim 1988 (2) ZLR
61 the court held that in considering the best interest of the child
a court should take into account such factors such as the sex, age,
health, educational needs of the child and the social and financial
position of each parent as well as the character, temperament and
past behaviour towards the child.
In assessing the evidence, I was of the view that the plaintiff had
not established that the defendant was not a fit and proper parent to
have custody of the minor children;
(i) Firstly the plaintiff alleged that she was suicidal and had tried
to poison him so she could also kill the children. However he is
prepared to let the defendant have custody of the youngest child who
is least able to protect himself against the defendant's excesses
whilst he has the elder children. In my view if the plaintiff was
convinced that the defendant was a danger to the children he would
not wish her to have custody of any of the children at all.
(ii) Secondly the allegation of attempted murder has not been
substantiated at all. The defendant was never prosecuted for the
offence. The plaintiff himself did not even go to hospital after the
alleged attempt to his life. The report to the police was made two
months later almost as an afterthought. In spite of these allegations
the plaintiff has continued to live in the same house as the
defendant to this day. The plaintiff's father in his evidence said
the defendant stated that she was trying to save her marriage not to
kill the plaintiff.
The plaintiff and the defendant both struck the court as caring
parents who want the best for their children.
In applying the principles set
out in the Hackim case
and other cases it seems to me that a court must look at each
individual child's needs and make an award following such assessment.
Frank is 16 years old. He is almost a major. He attends boarding
school and is only with his parents during the school holidays. He
will obviously share the school break with both his parents. Whether
or not the plaintiff is granted custody he would only be able to have
him over the holidays. This should give him ample opportunity to
exert the necessary masculine influence on the boy.
Margaret on the other hand is 12
years old. She is a day scholar and lives at home. She is a young
girl entering puberty. Whilst the court accepts that there is no
basic principle that a girl child should be placed in the custody of
the mother there is a presumption that the best interests of the girl
child would be best served by placing her in the custody of her
mother. (Goto v Goto
2000 (1) ZLR 257 at 260).
It is my view that the best interests of this child would be served
by being with her mother. She will require the assistance of a mother
with dealing with problems associated with girls at that age. There
was no evidence that she is of any danger to the children. Her love
for her children cannot be doubted considering that she was extremely
upset when it was suggested by her husband that her baby aged 1 year
and 3 months should go with her mother in law to live in the rural
areas.
This court and the Supreme Court
have stated repeatedly that minor children should not be separated
unless there are cogent reasons for doing so. This position is
stressed in the following headnote in van
der Linde v van der Linde
1996 (3) SA 509 at 510:
"The question of whether children should be separated in
applications for custody comprises two enquiries;
(a) is it desirable that the children be separated from each other;
and
(b) is the quality of a parental role determined by gender?
With regard to (a) all being equal, siblings should not be
unnecessarily separated from each other. The reason being that
siblings experiencing trauma of a divorce tend to bond with each
other. A bond which to a great extent gives them a feeling of
security against the onslaught from outside."
In this case no real reason has been offered for separating the
children.
It is already conceded that the defendant should have custody of the
youngest child. The defendant has shown that she has been the
caregiver in this relationship. Her evidence to the effect that she
is the one who makes sure that the children are fed and clothed was
not challenged by the plaintiff. In my view the best interests of the
children would be served by the award of custody being made to the
defendant.
With respect to maintenance, it was clear from the evidence that the
plaintiff is already paying for the children's school fees, medical
aid and buying their uniforms. The plaintiff stated that he was
prepared to continue to do so.
The defendant has stated that she can cater for their daily expenses
that is paying the maid and buying their food and clothes.
Although the defendant had claimed a sum of money in her summons the
amount claimed is no longer in use and she did not amend her claim so
that it becomes a claim in foreign currency. The claim for a monthly
maintenance in foreign currency cannot thus be upheld.
The parties agreed on the distribution of their movable assets at
pretrial conference. They seek that their agreement be incorporated
as part of the order that this court will make.
The issue which was referred to trial related to a Hyundai Excel
sedan registration number AAG 3526. The motor vehicle in question is
registered in the name of the plaintiff.
He told the court that he purchased it on his own without any
contributions from the defendant. The purchase price was deducted
directly from his salary and paid to CMED.
The registration book is endorsed " not for resale on HP with
CMED (Pvt) Ltd."
The defendant on the other hand argued that this motor vehicle should
be sold and the proceeds shared equally between the parties.
During the course of the trial it became apparent that the parties
were in agreement that instead of selling the two motor vehicles
acquired during the course of the marriage and sharing the proceeds
each party should retain one. In submissions the plaintiff offered
the defendant the Toyota Stallion whilst he kept the Hyundai Excel.
This was accepted by the defendant. I will therefore make an order as
agreed to by the parties.
Turning to the immovable property the plaintiff testified as follows.
They are the joint owners of the immovable property.
He purchased the property as an
undeveloped Stand from Houses for Africa (Pvt) Ltd in 1999. The Stand
was fully paid up in 2001. The house was subsequently built and the
property transferred into their joint names.
He produced receipts for building materials purchased by him in his
name. The plaintiff stated that although there was no contribution by
the defendant he decided to include her as a joint owner to the
property so that his family would not encounter any problems in the
event that he died first. He stated that he is entitled to 75% share
of the property because the property was built and developed solely
by him. He testified that he was the sole breadwinner in the family.
Apart from his salary he would get money from business trips outside
the country. When defendant completed her teachers training program
she did not want to pool her resources with him. He did not even know
how much she earned.
The defendant testified that she
has been married to the plaintiff for the past sixteen years. She is
employed as a secondary school teacher and has been so employed since
1997. When she started living with the plaintiff she was employed as
a temporary teacher at Highfield Secondary School. From 1994 to 1996
she was at college training to be a teacher. She obtained a loan for
her studies. She was also involved in other fund raising projects for
the benefit of the family. She taught extra lessons and was involved
in a sewing project. The immovable property was bought through her
direct and indirect contributions as she used to give the plaintiff
all her earnings. She cooked for the builders and her brother looked
after the building materials during the period of construction.
Between 2002 and 2003 the plaintiff was in Mutare pursuing a Masters
Degree program and the defendant remained in charge of supervising
the construction of the property. During this time there was no
electricity on the premises and she electrified the property. The
defendant testified that her name was included in the agreement of
sale because she had contributed to the purchase of the property. She
stated that whilst he paid for the Stand directly her money bought
groceries and other household items. The defendant stated that she
was entitled to a 50% share of the property.
In assessing the evidence it
seemed to me that the plaintiff was intent on showing that the
defendant had not contributed at all in the acquisition and
construction of the property. He however, did not dispute defendant's
evidence that they earned about the same salary and the plaintiff
could not have achieved the purchase and construction of the house
without her help. I believed the defendant when she said that she had
given her salary to the plaintiff to use during the purchase and
construction of the Stand. The plaintiff was economic with the truth
when he said he was the sole breadwinner in the family and yet the
evidence led showed that the defendant had worked throughout her
married life with the plaintiff. Her income was thus used for the
benefit of the family and the development of the property.
In making an award for
matrimonial property the court is enjoined to consider the factors
set out in section 7(4) of the Matrimonial Causes Act [Cap
6:13] (the Act). These
factors are;
(i) the income earning capacity
of the spouses, assets and other financial resources which each
spouse is likely to have in the foreseeable future;
(ii) financial needs and
obligations of each spouse in the foreseeable future;
(iii) the standard of living of
the family;
(iv) the age and physical well
being of each spouse;
(v) direct and indirect
contributions to the family;
(vi) the value to either of the
spouses of any benefit including a pension or gratuity which such
spouse will lose as a result of the dissolution of the marriage; and
(vii) the duration of the
marriage.
These factors, where applicable, must be taken into account together
so as to assist the court in making an equitable distribution of the
matrimonial estate.
In the case of Hatendi
v Hatendi 2001 (2) ZLR
530 (S) it was held that in making an award in terms of section 7 the
court is given very wide discretionary powers so as to enable it to
make an equitable distribution between the parties. It is now settled
that in order for the court to achieve an equitable distribution it
must take into account all the factors that are set out in section
7(4) of the Matrimonial Causes Act. In making the award the court
must endeavor to place the parties in the position they would have
been had the marriage continued.
In Shenje
v Shenje 2001 (2) ZLR
160 GILLESPIE J stated that the court must consider all the factors
set out in section 7(4) of the Matrimonial Causes Act. He stated as
follows at page 163 of the judgment:
"The factors listed in the subsection deserve a fresh comment.
One might form the impression from the decisions of the court that
the crucial consideration is that of the respective contributions of
the parties. That would be an error. The matter of the contributions
made to the family is the fifth listed of seven considerations. The
first four listed considerations all address the needs of the parties
rather than their dues. Perhaps, it is time to recognize that the
legislative intent and the objective of the courts, is more weighed
in favour of ensuring that the parties needs are met rather than that
their contributions are recouped."
There can be no doubt that all contributions are important in a
marriage whether they be material or otherwise. Some contributions
are not even tangible as they relate to the moral support given to a
husband as he goes about his work and ensuring that he comes home to
a comfortable and happy home. Although such contributions cannot be
quantified in any monetary term there is no doubt that they are
important in the building of a happy home.
In Hatendi
v Hatendi (supra)
the Supreme Court emphasized the wide discretion accorded to the
court in the division of matrimonial assets and stated that the court
may take into account factors that are not easily quantified.
Section 7(4) of the Matrimonial Causes Act obliges the court to look
at the financial needs, obligations and responsibilities which each
spouse and child has or is likely to have in the foreseeable future.
I have determined that the defendant should be awarded custody of the
minor children. As the custodian parent she will need to look for
suitable accommodation for herself and the children. They require a
house in a good area as that is what the defendant and the children
are accustomed to. The defendant can use her share of the property to
purchase a house for her and the children. The youngest child is only
4 years old and he will need to be provided with accommodation for
the next 14 years.
In this case the parties were
married in 1993. They have been married for a period in excess of 16
years. They were both gainfully employed as civil servants. Although
the plaintiff earned slightly more than the defendant the defendant's
income was used for the support of the household. In my view the
plaintiff could not have bought the Stand and developed it without
the full support of the defendant. I did not hear the plaintiff say
that the defendant used her money for purposes outside the
matrimonial home.
In the case of Chapeyama
v Chapeyama 2000 (2)
ZLR 175 (S) the court awarded a 50% share to the parties on the basis
that the property was registered in both their names and they had
pooled their resources to run the family.
In this case the parties have done exactly the same.
In any event the disputed house
is jointly owned by the parties. The registration of rights in terms
of the Deeds Registries Act [Cap
20:05] is not just a
formality. It is a matter of substance as it conveys real rights to
the person in whose name the property is registered. (See Takafuma
v Takafuma 1994 (2)
ZLR 103 and Lafotant v
Kennedy 2000 (2) ZLR
280).
I can find no justification in this case to take away part of the
defendant's half share and give it to the plaintiff.
The plaintiff submitted that he could buy out the defendant given a
three month period. The defendant has indicated that she does not
have the means to purchase the property but would like to be allowed
to continue to reside on the property for the period whilst he is
raising the money. The plaintiff did not raise any objections to that
request either in his evidence or in his submissions. I will
therefore take this into account when making the order.
Accordingly, it is ordered as follows:
1. A decree of divorce is hereby
granted.
2. Custody of the three minor
children Frank Chinyavanhu (born 6 March 1993), Margaret Chinyavanhu
(born 23 September 1997) and Emmanuel Chinyavanhu (born 24 June 2005)
is hereby awarded to the defendant.
3. The plaintiff is awarded
reasonable access to the minor children which shall not be less than
half of every school holiday. The access shall be exercised in
consultation with the defendant.
4. The plaintiff shall pay each
of the children's entire school account including fees, levies,
uniforms and extra curricula activities until they attain the age of
18 or become self supporting whichever occurs sooner.
5. The plaintiff shall maintain
each minor child on his medical aid scheme until they attain the age
of 18 or become self supporting whichever occurs sooner.
6. The plaintiff is awarded the
movable property set out in Annexure A to this order as his sole and
exclusive property.
7. The defendant is awarded the
property set out in Annexure B to this order as her sole and
exclusive property.
8. The plaintiff and the
defendant are hereby declared to be the owners of an undivided half
share in Stand 2209 Prospect Township of Stand 2899 Prospect Township
measuring 860 square meters also known as Stand 2209 Mainway Meadows,
Waterfalls, Harare.
9. The plaintiff is granted leave
to buy out the defendant's half share of the above named property.
(a) The property shall be valued
by a registered estate agent nominated by the parties within 30 days
of this order.
(b) In the event that the parties
fail to agree on the estate agent as set out in paragraph 6(a) of
this order the Registrar shall appoint an estate agent from his list
of valuers to conduct an evaluation of the property upon request by
either party.
(c) The estate agent shall submit
the report to the parties within 14 days of his appointment.
(d) The cost of the valuation
shall be shared equally between the parties.
(e) The plaintiff shall exercise
the option to buy out the defendant's 50% share within 90 days of the
date of valuation of the property.
10. In the event that the
plaintiff fails to buy out the defendant in terms of paragraph 6 of
this order the property shall be sold at best advantage and the net
proceeds shall be shared equally between the parties.
11. The defendant shall have the
right to remain on the said property until the plaintiff has paid her
the 50% share in the property.
12. There shall be no order as to
costs.
Muringi, Kamdefwere, Legal Practitioners, Plaintiffs Legal
Practitioner
Legal Aid Directorate, Defendants Legal Practitioner
FREDDY CHINYAVANHU
versus
LETWIN CHINYAVANHU
ANNEXURE A
1. REFRIGERATOR
2. 2 BEDS
3. WARDROBE
4. SHARP RADIO
5. HYNDAI EXCEL REGISTRATION NUMBER AAG 3526
6. DVD PLAYER
ANNEXURE B
1. 21" PHILLIPS TELEVISION
2. 4 PLATE STOVE
3. KITCHEN UTENSILS
4. ROOM DIVIDER
5. KITCHEN UNIT
6. SOFAS
7. COFFEE TABLE
8. TOYOTA STALLION REGISTRATION NUMBER AAV 1996
