Decree of Divorce re: Civil Rites or Solemnized Marriage iro Approach, the Fault Principle and Triable Issues

HH65-13 : REGGIENALD TANGIRAI vs THERESA HAZVINEYI TANGIRAI
Ruled By: GUVAVA J

The parties were married in terms of the Marriage Act [Chapter 5:11] on 30 May 1998. The marriage was blessed with four minor children Melanie Munashe Tangirai (born 18 February 1999), Malvin Tinashe Tangirai (born 24 January 2003), Cerise Vongaishe Tangirai (born 20 March 2004) and Denise Tangirai (born 2 March 2007). Following certain unhappy differences the parties separated in 2008. They have not lived together as husband and wife since that date. Upon separation, the plaintiff remained with the custody of the three eldest children whilst the defendant retained custody of the youngest child. On 4 January 2011, the plaintiff issued summons out of this court seeking a decree of divorce, custody of the three minor children already in his custody and distribution of the parties' matrimonial assets. The defendant, whilst admitting that the marriage had broken down, counter-claimed for custody of all the minor children, maintenance in the sum of US$200= per month for herself and US$100= per child per month, and an equitable share of their matrimonial property.

Following a pre-trial conference before a judge in chambers the parties filed a Joint Pre-Trial Conference Minute wherein they agreed that their marriage had irretrievably broken down. They also agreed that they were each entitled to a Stand in Dema. Six issues were referred to trial and these were as follows:

1. Whether or not the marriage has broken down?

2. Which party should be granted custody of the minor children?

3. What rights of access should the non-custodian parent enjoy?

4. What maintenance should the non-custodial parent pay towards the minor children?

5. Whether or not defendant is entitled to post-divorce maintenance, and, if so, the quantum thereof.

6. What would constitute just and equitable distribution of matrimonial property?

The defendant told the court that she resides at Stand 2189 Unit N Chitungwiza with her sister. She chronicled the problems that she and the plaintiff had and the efforts she had made to reconcile with the plaintiff. She confirmed that she had tried to use the traditional methods and the pastor at her church. However, these all failed and they separated in July 2008 after the plaintiff chased her out of the house. They have not lived together as husband and wife since then.

I will not dwell on this evidence as it is quite apparent during the trial that the marriage between the parties has broken down. It seems to me that the first issue is not an issue for determination by this court as the parties are agreed that the marriage has broken down.

There is clear evidence that the marriage has broken down as they have been living apart for a period in excess of four years. In the case of Ncube v Ncube 1993 (1) ZLR 39 (S) KORSAH JA held that where the parties are agreed that the marriage has broken down it is not necessary for the court to enquire into the cause of the breakdown as divorce is now based on the no fault concept.

I will therefore deal only with the five remaining issues. In determining this matter, I will deal with each of the issues raised by the parties….,.

1. A decree of divorce is hereby granted.

View Appeal
HH91-13 : ALPHEUS MAGUMISE vs CRESSY MAGUMISE (NEE DZINGIRAI)
Ruled By: UCHENA J

The plaintiff and the defendant married each other on 20 July 2001. The plaintiff instituted these divorce proceedings which the defendant is strenuously opposing….,. The plaintiff left their matrimonial home three years ago when the defendant had obtained a peace order against him, he said the peace order did not order him to leave the ...

The plaintiff and the defendant married each other on 20 July 2001. The plaintiff instituted these divorce proceedings which the defendant is strenuously opposing….,.

The plaintiff left their matrimonial home three years ago when the defendant had obtained a peace order against him, he said the peace order did not order him to leave the matrimonial home. He left because he feared the defendant would manipulate the peace order against him as he no longer loved her. He said he has lost love and affection for the defendant despite her protestations that she still loves him….,.

The plaintiff gave evidence in which he told the court of how their marriage broke down because of the defendant's refusal to comply with his directive that she should give up her cross-border trading. He also said she is difficult to live with as she is talkative and argumentative.

After all the evidence had been led from the plaintiff and his brother for the plaintiff; and the defendant and her friend for the defendant the following became common cause.

1. That the parties have been on separation for three years.

2. That the defendant has been staying in their matrimonial home and looking after it during the plaintiff's absence.

3. That she was paying electricity, water and rates bills during his absence.

4. That she, at some stage, stayed with and looked after the plaintiff's children from his previous unions.

5. That their union was not blessed with the fruits of the womb, but that the only pregnancy she conceived for the plaintiff developed in her fallopian tubes leading to an operation she said she still suffers from.

6. That she painted the house and contributed towards the purchase of a gate.

7. That she continued with her cross-border trading.

8. That she did not have evidence of the purchase of a land cruiser and other movables she claimed were purchased in South Africa.

9. That the plaintiff's children eventually left the matrimonial home and that she is now staying there alone.

There is no need to go over the party's evidence. It is clear that the defendant still loves the plaintiff who categorically said he has lost love and affection for her. It is trite that the courts cannot force parties to continue in marriage if the other spouse has lost love and affection for the other - even though the other spouse still loves the other. See the case of Kumirai v Kumirai 2006 (1) ZLR 134 (H)…,. There is no doubt in my mind that the plaintiff no longer loves the defendant. He has proved the breakdown of their marriage.

A decree of divorce will be granted….,.

In the result it is ordered that;

1. A decree of divorce be and is hereby granted.

HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO
Ruled By: UCHENA J

The plaintiff is the defendant's wife married to him in terms of the Marriages Act [Chapter 5:11]. They were married at Harare on 18 June 2003. She sued him for a decree of divorce and ancillary relief on the basis that their marriage has irretrievably broken down. The defendant agrees that their marriage has irretrievably ...

HH23-14 : AUSTEN GONESE vs LOWIS GONESE
Ruled By: UCHENA J

The plaintiff married the defendant on 23 February 2002. They married in terms of the Marriages Act [Chapter 5:11]. They were blessed with two children, X born on DATE, and Y born on DATE 2. Their marriage was, however, not a happy one from the beginning because the defendant did not like the plaintiff's sister. ...

The plaintiff married the defendant on 23 February 2002. They married in terms of the Marriages Act [Chapter 5:11]. They were blessed with two children, X born on DATE, and Y born on DATE 2.

Their marriage was, however, not a happy one from the beginning because the defendant did not like the plaintiff's sister. She did not want her to visit them nor did she want her husband to communicate with her. The dislike for her husband's sister is based on her claim that she had visions of her husband having sex with his sister. They had to abandon their rural homestead which was near the plaintiff's sister's home. The plaintiff and the defendant were church Elders of an undisclosed church. They sought counselling but the defendant, despite promises to change, did not do so. The plaintiff issued summons leading to this trial….,.

The case was referred to trial on the sole issue of whether or not the parties' marriage had irretrievably broken down.

The plaintiff led evidence on how their marriage had irretrievably broken down. He explained the defendant's bizarre dislike for his sister and the conditions she imposed on him as regards her visiting them and his communication with her. This included sexual sanctions against him which would be relaxed at her pleasure. He said he endured this treatment from his wife for many years as he was a church elder. He cannot bear it anymore hence his filling for divorce. He, as a result, has abandoned his eldership to free himself from the defendant. He said their marriage has irretrievably broken down and cannot be saved, as demonstrated by the several counselling sessions with their pastors which bore no positive result as the defendant persisted with her aversion for his sister. She, at one stage, demanded that his sister join their church, which she did, but the defendant said she was faking and could not be pacified. According to the plaintiff, they last had sex in 2012 after he had issued summons in October 2011. He later tried to change that to their having had sex before he issued summons but that was clearly an attempt to strengthen his case for divorce, which he still wants in spite of their last intimacy….,.

On the issue of the breakdown of the marriage, the defendant said her husband is living in adultery and will one day come to his senses and come back home. She said that is because all men do that.

That is clearly an erroneous assessment of the possibility of a reconciliation. It is a notorious fact that a lot of wives and husbands permanently lost their spouses who had strayed into adultery.

She later sought to base her hope in the plaintiff having promised to come back home when he spoke to her last week.

The plaintiff's counsel applied to reopen his case which counsel for the defendant did not oppose.

When the plaintiff came back to the witness stand he vehemently denied ever promising the defendant that he will come back to her.

While both the plaintiff and the defendant have shown a propensity to lie, it is not logical that the plaintiff would press on with the divorce proceedings if he intends to continue with the marriage. One does not consciously destroy that which he intends to preserve. I therefore do not believe the defendant when she says the plaintiff promised to come back home. I am thus satisfied that the marriage has irretrievably broken down. The defendant's wish to continue in marriage does not matter. A marriage cannot continue with one partner. It is a mutual institution made possible by two co-operating partners. See the case of Kumirai v Kumirai 2006 (1) ZLR 134 (H)…, where MAKARAU J…, said;

“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 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 to satisfy the court that the marriage still has some life in it, one has to adduce evidence to the effect that after the filling of the summons, the parties have reconciled and are living after the manner of husband and wife. In my view, evidence that on one occasion after the service of summons, the parties took a holiday together and afforded each other conjugal rights, as was led in this trial, is insufficient, on its own, to show that the marriage has prospects of mending. If anything, it goes to show that despite attempts to rekindle the fires, the parties failed to reconcile.”

In the result, I make the following orders;

1. That a decree of divorce be and is hereby granted.

HH181-14 : SHEILA CHINYAMAKOBVU vs EMMANUEL CHINYAMAKOBVU
Ruled By: MAWADZE J

The parties were married on 5 January 2005 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with one child, born on 5 August 1997. Both parties currently reside in Germany. The applicant entered an appearance to defend on 4 November 2011, filed her plea and counter-claim on the same date. The matter ...

Appealed
SC51-17 : A SHONHAYI DENHERE vs MUTSA DENHERE (Nee MARANGE)
Ruled By: GOWORA JA, GUVAVA JA and MAVANGIRA JA

On 27 November 2014, the High Court issued a decree of divorce together with ancillary relief to the appellant and the respondent respectively. On 17 December 2014, the appellant, filed an appeal with the respondent filing a cross appeal on 19 December 2014. For ease of reference, I will refer to the parties as ...

The salient facts to this appeal are the following.

On 7 May 1994, the parties entered into a customary law union. On 15 August 1998, the parties had their marriage solemnized in terms of the Marriage Act [Chapter 5:11]. The union was blessed with three children, two of whom, A and B, are still minors.

On 17 April 2013, the respondent, citing irreconcilable differences between the parties, filed summons in the High Court for divorce and ancillary relief. The appellant opposed the claim and filed a plea in support thereof.

However, at the pre-trial conference, the parties agreed that the marriage had broken down irretrievably and that a decree of divorce should be granted by consent. The parties further agreed that an amount of $300= per month be paid as maintenance for the two minor children, and, further, that two immovable properties, namely No.397 Tariro Road, Chitungwiza and No.29 Collenbrander Road, Milton Park be shared equally between the parties. The issue of the custody of the minor children and the distribution of the remainder of the matrimonial assets were referred for trial.

The grounds of appeal raised by the appellant were the following:

1. The court a quo erred and misdirected itself in ordering that the appellant should pay maintenance in respect of B at the rate of US300= per month considering that the minor child is in boarding school and will only be with the respondent during holidays. (sic)

2. The court a quo erred and misdirected itself in awarding the respondent 50 per cent of the total herd of cattle at Plot 25 Highbury Estate, Mhangura and at the same time allowing the respondent to retain whatever movable assets at her 89 Shamva Road Farm. (sic)

3. The court a quo further erred and misdirected itself in awarding the respondent 100 per cent of No.1 Reigate Flat whilst finding that the respondent did not make any direct contribution towards the acquisition of the same. The 100 per cent award is unjustified in the circumstances.

4. The court a quo further erred and misdirected itself in awarding 50 per cent of No.44 East Court, Belvedere, Harare which was not supported by facts in the circumstances to the respondent. (sic)

5. The court a quo further erred and misdirected itself in dealing with No.2 Reigate Flat as if it is owned by the appellant entirely and also misdirected itself in dealing with No.39A Dover Road as if the same is owned by the appellant entirely. The two properties are jointly owned and ought not to have formed part of the matrimonial estate. In any event, no title was proven in respect of the properties as being with the appellant. (sic)

6. The court a quo also erred and misdirected itself in awarding the appellant, as his sole and exclusive property, No.13 Mardmaz Flat when in fact it made a finding that the parties had both contributed to an extent that each has to get 50%. (sic)

7. The court a quo also erred by not ensuring that the obligations and liabilities are shared equally between the appellant and respondent in respect of;

(i) Outstanding loans from the purchase of the properties.

(ii) US109,000= school fees per year for the minor children.

(iii) ZAR160,000= outstanding mortgage bond for No.10 Elizabeth Avenue, Rivonia, Sandton.

8. At any rate, the court a quo erred and misdirected itself in not considering the respondent's assets, for example, Demusk Enterprises, for distribution under assets of the spouses. (sic)

9. The court a quo also erred and misdirected itself in including the Toyota Land Cruiser and Mazda Titan for distribution. The same had long been sold by the appellant prior to the divorce proceedings, and, in any event, the court a quo erred in including the Land Rover Discovery which vehicle never existed and could therefore not be allocated. (sic)

The respondent's grounds in the cross-appeal were as follows:

1. The court a quo grossly misdirected itself in ruling that custody of the minor child A should be granted to the appellant when it had made a finding that the same appellant was not suitable to be a custodian parent. (sic)

2. The court a quo misdirected itself by only ordering that the appellant pays as maintenance towards the minor child B US300= per month without directing the appellant to pay school fees and medical aid for the minor child, when in fact the appellant had offered to pay the same.

3. The court a quo misdirected itself in awarding the appellant, as his sole and exclusive property, No.13 Mardmaz Flat when in fact it had made a finding that the parties had both contributed to an extent that each has to get 50 per cent.

The part of the judgment being appealed against raises two fundamental questions on appeal, which are;

(i) Firstly, whether or not the court a quo misdirected itself in the manner in which it distributed the matrimonial assets of the marriage.

(ii) The second question is related to the custody of the minor children and the attendant issues of maintenance, the payment of school fees, school uniforms, and the general welfare of the minor children.

HH31-15 : ISAAC CHAMBA vs MAYBE NGWARATI
Ruled By: CHITAKUNYE J

The plaintiff and defendant were customarily married to each other in 1976. In July 1978, their marriage was solemnised in terms of the Customary Marriages Act [Chapter 5:08] (then known as African Marriages Act). In 1979, the couple acquired Stand Number 7113/14 Zengeza Township, Chitungwiza, also known as House Number 7113, Tsambakodzi Road, Zengeza 3, ...

In 1979, the couple acquired Stand Number 7113/14 Zengeza Township, Chitungwiza, also known as House Number 7113, Tsambakodzi Road, Zengeza 3, Chitungwiza, from Chitungwiza Town Council. The Memorandum of Understanding for the purchase of the property was in the plaintiff's name. The improvements on the Stand comprised a two-roomed core house.

The couple was blessed with four (4) children who are all adults.

On the 3^rdof September 1991, the plaintiff obtained a Divorce Order from Mutoko Community Court. The ground advanced for seeking divorce was one of a long period of separation.

A Certificate of Dissolution of the marriage was issued by the said court on the 10^thof January 1992.

That order has remained unchallenged.

On the 3^rdof April 2012, the plaintiff issued summons out of this court for the sharing of House Number 7113, Tsambakodzi Road, Zengeza 3, Chitungwiza. The plaintiff alleged that when the marriage was dissolved, in 1991, the issue of property sharing was not dealt with as neither party had claimed for such sharing.

He thus wished the property to be shared as at the time the defendant deserted him in 1982 when he alleges there was only the core house. He alleged that the parties separated in 1982 to about the year 2004.

The defendant, in her plea, denied that there was any long separation as alleged by the plaintiff. She objected to the sharing of the property. In paragraph 2 of her plea she categorically stated, inter alia, that the plaintiff and defendant never separated as alleged by the plaintiff. It is only in 1998 that she said the parties briefly separated due to the plaintiff's infidelity but they soon reconciled and continued staying together.

At a pre-trial conference held in February 2013, the following issues were referred to trial:

1. Whether or not the plaintiff and the defendant had already separated prior to their divorce in 1992.

2. Whether or not House No.7113/14 Tsambakodzi Road, Zengeza 3, was a core house when the plaintiff and the defendant separated.

3. Whether or not the defendant directly contributed financially towards the acquisition and subsequent construction of the house to its present status.

4. Whether or not the parties' mentally challenged child needs accommodation and extra care, and, if so, whether or not that extra care can only be provided by the defendant.

5. Whether or not the house should therefore be shared, and, if so, in what percentage.

HH35-15 : TENDAI PANGETI vs CHRISTINA NYAGUMBO
Ruled By: CHITAKUNYE J

The plaintiff and defendant started living together as man and wife in 1999. This was after the plaintiff had paid lobola for the defendant. Traditionally, therefore, they were married as from 1999. Their marriage was, however, unregistered. On 17 January 2005, the parties' union was solemnised in terms of the Marriages Act [Chapter 5:11]. The ...

The marriage was blessed with three (3) children whose ages were given as 11 years, 4 years and 6 months as at the time of instituting these proceedings.

On 14 June 2010, the plaintiff issued summons seeking a decree of divorce and other ancillary relief. The plaintiff alleged that the marriage relationship has irretrievably broken down to such an extent that there are no reasonable prospects of restoration of a normal marriage relationship.

The defendant, in her plea, conceded that the marriage has irretrievably broken down and so a decree of divorce should be granted. She also made a counter-claim in which she sought:-

1. A decree of divorce;

2. Custody of the three minor children of the marriage;

3. The right to reside at No.151 Monavale Road, Avondale, Harare with all the minor children until the youngest attains the age of 18 years;

4. Maintenance for the three minor children in the sum of $200= per month, per child, until each child attains the age of 18 years or becomes self-supporting whichever is earlier;

5. Maintenance for the defendant in the sum of $150= per month;

6. A distribution of assets of the spouses as per paragraphs 7.1 – 7.2 of her counterclaim; and

7. Costs of suit.

At a pre-trial conference held on 18 July 2012, the parties appeared to have settled on a number of aspects hence the only issues referred to trial comprised:-

1. How much maintenance should the plaintiff pay in respect of the minor children of the marriage;

2. Whether the shop in the plaintiff's possession should be shared, and, if so, in what ratio?

3. In what ratio should the immovable property of the parties be shared?

4. At which stage should the immovable property be sold following divorce?

On the trial date, the issue of the shop had been resolved such that only issues 1, 3 and 4 remained for determination.

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

The plaintiff and the defendant married each other in terms of customary law in 1997. On 14 April 2007, their marriage was solemnised in terms of the Marriages Act [Chapter 5:11]. The marriage subsists, Their marriage was blessed with three children who are still minors. On 8 March 2012, the plaintiff issued ...

On 8 March 2012, the plaintiff issued summons out of this court seeking a decree of divorce and other ancillary relief. In her declaration, the plaintiff alleged that the marriage relationship has irretrievably broken down to such an extent that there are no reasonable prospects for its restoration to a normal marriage. The grounds advanced for the breakdown included that:-

(1) The parties are no longer compatible as the defendant constantly verbally abuses the plaintiff.

(2) As a result of the abuse, the plaintiff has moved out of the matrimonial home and is staying with her uncle in Chitungwiza.

(3) The defendant has failed to treat the plaintiff with the love and affection that is expected between husband and wife.

(4) Due to the foregoing, the plaintiff has lost all love and affection for the defendant and thus seeks a decree of divorce.

The plaintiff claimed custody of the three children, maintenance for the children, a share of assets of the spouses, in terms of paragraphs 9 and 10 of her declaration, and an order that each party pays their own costs of suit.

The defendant's plea was to the effect that the marriage had not irretrievably broken down. He still loved his wife. He went on to say the plaintiff was facing psychological challenges, which, if resolved, would result in the marriage relationship normalising. He therefore asked for the claim for divorce to be dismissed. In the event that the court granted the decree of divorce, the defendant's plea was to the effect that he be awarded custody of the minor children and that the immovable property be awarded to him as he is the one who acquired the property before he met the plaintiff.

At a pre-trial conference, the parties agreed on some of the contentious issues. The pre-trial conference minute shows that the parties agreed that:-

(i) The marriage has irretrievably broken down;

(ii) That the plaintiff will have full household goods proved to be available on a list to be filed by the defendant on 11 March 2013; except for the motor vehicles which are subject to issue number A. 4.

The contentious issues referred to trial comprised:-

1. Whether it is in the best interest of the minor children of the marriage for their custody to be awarded to either the plaintiff or the defendant.

2. What amount of maintenance would be reasonable and payable by the non-custodian parent for the minor children of the marriage?

3. What access rights should the non-custodian parent have to the minor children of the marriage?

4. What would be just and equitable distribution of the matrimonial property of both movable and immovable; including motor vehicles, as listed in the paragraph (9) of the plaintiff's declaration with the amendment of the Toyota Rustler to read Mazda Rustler and as listed in paragraph (15) of the defendant's plea and the immovable properties as listed in paragraph (8) of the plaintiff's declaration and as listed in paragraph (12) and (12.1) of the defendant's plea?

5. Whether the plaintiff is entitled to post-divorce maintenance as a lump sum maintenance payment?

On the trial date, the parties submitted a Deed of Settlement on further issues. That Deed of Settlement provided that:-

1. IMMOVABLES

1.1 Stand 2477 Glen Lorne Township (7 Gaydon Crescent, Greystone Park. Harare).

The plaintiff shall obtain 50% of the net proceeds of the sale of the property in execution subject to the agreement of the judgment creditor in HC1291/12; or

Alternatively, the Defendant shall pay the plaintiff US$90,000= on or before the 31^st July 2014.

1.2 Stand 622 Ruwa Township of Stand 2016 Ruwa Township.

The plaintiff shall, subject to the writ of execution in HC1292/12 and any mortgage bond thereof be entitled to 100% ownership of the property.

1.3 Stand 2439 Chikanga Phse 2, Mutare.

The defendant shall, on or before 31^st July 2014, pay the plaintiff 50% of the value of the property provided that the valuation shall be done by a valuer appointed by the Registrar of the High Court from his panel of valuators. The cost of valuation shall be met by the defendant.

2. Custody

2.1 Plaintiff shall have custody of the two minor children, namely:

(a) Y (born 27 March 2004).

(b) U (born 26 February 2010).

Provided that the Defendant shall have access to the two minor children every last weekend of the month from Fridays at 17:00 hrs to Sunday at 14:00 hrs.

2.2 Defendant shall have custody of the minor child X (born 1 March 1998) provided that she shall be free to visit the Plaintiff by making her own prior arrangements with the Plaintiff.

2.3 The Defendant shall pay all the school fees for the three minor children of the marriage and all related educational costs including uniforms, sports attire and equipment up to tertiary level.

The issues that remained for determination comprised:-

1. Whether or not the parties' marriage has irretrievably broken down?

2. Whether or not the defendant must compensate the plaintiff for the movable property sold in execution of a court judgment?

3. Whether or not the plaintiff is entitled to the motor vehicles as per paragraph 10 of her declaration?

4. What maintenance must the defendant pay for the two minor children in the plaintiff's custody and the plaintiff?

5. Whether the plaintiff is entitled to post divorce maintenance as a lump sum maintenance payment?

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

1. Whether or not the marriage has irretrievably broken down Section 5(1) of the Matrimonial Causes Act [Chapter 5:13] provides that:- “An appropriate court may grant a decree of divorce on the grounds of irretrievable break-down of the marriage if it is satisfied that the marriage relationship between the parties has broken down to such an extent that ...

1. Whether or not the marriage has irretrievably broken down

Section 5(1) of the Matrimonial Causes Act [Chapter 5:13] provides that:-

“An appropriate court may grant a decree of divorce on the grounds of irretrievable break-down 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.”

There are basically two characteristics that the court considers in ascertaining whether a marriage has irretrievably broken down or not include;

(a) That the marriage relationship is no longer in its normal state.

(b) That there is no reasonable prospect of restoration of the normal marriage relationship between the parties.

From the evidence adduced in court, it is common cause that the marriage relationship between the parties is no longer normal. In this regard, both parties admitted that due to some problems in their marriage they have been on separation since February 2012. There has not been any meaningful communication, if any, between them during this time. Even as they came for trial, they could not exchange greetings.

Clearly, that is not the normal relationship in a marriage.

The next point to consider is whether there is a reasonable prospect of the parties reconciling and living a normal marriage relationship.

The plaintiff's evidence was to the effect that there is no prospect of the restoration of a normal marriage relationship. She was insistent throughout her evidence that she has lost all love and affection for the defendant. She alluded to the fact that they have been on separation for 31 months and during that period they hardly communicated. She also alluded to the fact that for those 31 months, the defendant has done nothing to show reformation or that he was genuine in his purported desire for reunion. If anything, the defendant's action, in financially starving the plaintiff and the children in her custody, has only served to confirm that they cannot restore a normal marriage relationship.

The defendant, on the other hand, contended that the marriage can be rehabilitated if the parties go for counselling and the plaintiff's problem, of a spiritual attack, is attended to.

The defendant could, however, not state what steps, if any, he has taken to restore the normal marriage relationship.

In Kumirai v Kumirai 2006 (1) ZLR 134 (H)…, MAKARAU J…, had occasion to deal with a similar scenario and aptly put the legal position as:-

“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.”

The learned judge went on to say that the defendant, if he must succeed in his assertion that the marriage has not broken down irretrievably, must adduce evidence of such life in the marriage. It is for the defendant to satisfy the court that the marriage has still has some life in it. In order to do this, the defendant must adduce evidence showing that after the issuance of the summons the parties have found each other and are now living in the manner of husband and wife. A sheer hope that if both parties receive counselling the marriage could be resuscitated is not enough.

In casu, the defendant has harboured this hope ever since the summons was issued but he has not taken any positive steps for the realisation of that hope. It is clear to me that the defendant is not serious in his contention that the marriage can be revived. Clearly, he just won't accept the reality of a marriage that has broken down irretrievably.

On this issue, therefore, I find that the marriage has irretrievably broken down and a decree of divorce must be granted….,.

1. A decree of divorce be and is hereby granted.

HH121-15 : GLADYS CHIGUNDE (nee Mautsi) vs DAVID CHIGUNDE
Ruled By: CHITAKUNYE J

The plaintiff and defendant were married in terms of the Marriages Act [Chapter 5:11] on 7 September 1985. The marriage subsists. Their marriage was blessed with two children who are both now adults. On 7 June 2013, the plaintiff issued summons out of this court for the dissolution of the marriage and a distribution of both movable and immovable ...

The plaintiff and defendant were married in terms of the Marriages Act [Chapter 5:11] on 7 September 1985. The marriage subsists. Their marriage was blessed with two children who are both now adults.

On 7 June 2013, the plaintiff issued summons out of this court for the dissolution of the marriage and a distribution of both movable and immovable properties owned by the parties. The plaintiff alleged that the marriage relationship has irretrievably broken down to such an extent that they can no longer live together as husband and wife. The factors of the breakdown included that:-

(a) The defendant has improperly associated with other women during the subsistence of the marriage;

(b) The defendant has failed to treat the plaintiff with respect as expected between husband and wife;

(c) The parties have not slept together as husband and wife for more than six years;

(d) The defendant has physically and emotionally abused the plaintiff.

The defendant, in his plea, conceded that the marriage has indeed irretrievably broken down, albeit, for reasons different from those advanced by the plaintiff. He further conceded that the parties have not shared bed as husband and wife for more than six years preceding the institution of this case.

In his counter claim, the defendant prayed for a decree of divorce and an order for the distribution of assets of the spouses as per paragraphs 6, 7 and 8 of his counterclaim.

From the aforementioned, it is clear that both parties are of the firm view that there are no reasonable prospects of a restoration of a normal marriage relationship between them..

At a pre-trial conference, the parties settled on almost all the issues except on the issue of the distribution ratio for the matrimonial immovable property, namely, No.9 Harare Drive, Logan Park, Hatfield, Harare.

The parties agreed that:-

1. The marriage has irretrievably broken down to the extent that there are no prospects of the parties living together as husband and wife;

2. The plaintiff can have 50 per cent of a certain undeveloped piece of land known as Stand Number 24273 Ruwa Township of York Estates;

3. The plaintiff contributes 50 per cent of the amount owing on the property referred in paragraph 2 above;

4. The parties have already shared the movables between them; and

5. That each party shall bear his/her own costs....,.

Accordingly it is hereby ordered that:-

1. A decree of divorce be and is hereby granted.

HH150-15 : SHINGIRAI PHILIP KATSANDE vs ANGELINE KATSANDE (nee NYAHWEMA)
Ruled By: CHITAKUNYE J

The plaintiff and defendant were married on 18 December 1993 at Harare in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. Their marriage was blessed with four children. On 27 September 2007, the plaintiff issued summons out of this court seeking a decree of divorce and other ancillary relief. The plaintiff alleged that the marriage has ...

The plaintiff and defendant were married on 18 December 1993 at Harare in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. Their marriage was blessed with four children.

On 27 September 2007, the plaintiff issued summons out of this court seeking a decree of divorce and other ancillary relief. The plaintiff alleged that the marriage has irretrievably broken down to such an extent that there is no reasonable prospect of restoration to a normal marriage relationship in that:-

1. The plaintiff has lost all love and affection for the defendant;

2. The parties have lived separate lives for most part of their marriage but formally separated in December 2005 and have not lived as man and wife ever since.

The plaintiff thus sought an order for:-

1. For a decree of divorce;

2. That defendant be awarded custody of the minor children of the marriage with plaintiff enjoying rights of access by prior arrangement with defendant;

3. That issues of maintenance be dealt with by the Magistrate Court; and

4. That issues of movable and immovable property should not arise as the parties had agreed that their property would be acquired out of community.

The defendant, in her plea, conceded that the marriage has irretrievably broken down and so a decree of divorce should be granted. She accepted to be awarded custody of the minor children. She however denied that the property should not be dealt with. In her counter-claim, the defendant contended that there should be a division and distribution of assets of the spouses as per her counter-claim and that maintenance be determined by this court.

At a pre-trial conference held on 19 October 2012 the parties agreed that:-

1. That the marriage has irretrievably broken down and that there are no reasonable prospects for the restoration of a normal marriage relationship as between the parties.

2. Subject to provisions of paragraph 2.1 below, the plaintiff shall be solely responsible for the payment of school fees in respect of all the minor children, namely:-

(a) E, born on the 4^th June 1996;

(b) F, born on the 22^nd September, 1998;

(d) H, born on the 7^th February, 2005.

2.1 The school fees payable by the plaintiff shall be pegged to fees charged at the Dominican Convent, Harare, at any given time.

2.2. In the event that the children are enrolled at a school whose fees exceed those of Dominican Convent, Harare, the defendant shall be responsible for such excess.

3. That the defendant shall be responsible for the day to day needs of the minor children.

4. That the defendant shall have custody of all the minor children of the marriage with the plaintiff having reasonable rights of access on alternate weekends, half of each school holiday and on alternate public holidays.

The issues referred to trial comprised:

1. Who caused the breakdown of the marriage by his/her conduct?

2. If he/she did, does such conduct constitute gross marital misconduct deserving of censure in the distribution of the matrimonial assets?

3. What constitutes assets of the marriage?

4.1. Has the plaintiff registered matrimonial assets in the names of third parties? If he has, does this constitute gross marital misconduct deserving of censure?

4.2 What would constitute fair and equitable distribution of the parties' assets, taking into account the parties' conduct, direct and indirect contributions, their needs, including the children's needs?

5. What would be a just order of costs?

The plaintiff gave evidence after which the defendant gave evidence. The defendant called one witness in support of her case, a Mrs Dhora Muyengwa.

Though at the beginning of the trial a lot seemed at stake, in the sense of being disputed, as the trial progressed important concessions were made such that only one or two issues remained contentious.

From the evidence adduced, it was common cause that the parties' marriage was essentially an unhappy one. The marriage was characterised by such problems as impotence on the part of the plaintiff thus culminating in frustrations between the parties; an unsettled lifestyle as the plaintiff moved regularly by virtue of his job and also in changing employment. Due to the strained relationship, the defendant was, on a number of occasions, sent back to her parents' home only to be enticed back to the plaintiff. The marriage life, as told by the parties, makes sad reading. Naturally, this affected their working life as the defendant would resign from her employment to join her husband where he will have moved to only to enjoy family life for a brief period before the usual problems between them resurfaced.

The parties eventually separated for good in February 2006 with the defendant being taken back to her parents' home again and never to come back as had become the norm. The parties have thus not lived together as man and wife since February 2006. The defendant has been at her parents' home with the youngest child. I am thus convinced that the marriage has indeed irretrievably broken down with no prospects of restoration to a normal marriage relationship.

A decree of divorce should thus be granted….,.

1. A decree of divorce be and is hereby granted.

HH312-17 : RACHEL CHIPARAUSHE (nee CHIMFWEMBE) vs LANGTON CHIPARAUSHE and JOHANNES CHIPARAUSHE
Ruled By: CHITAKUNYE J

The plaintiff and the first defendant married each other on 13 May 1976 in Botswana in terms of that country's civil marriage laws, the Marriage Proclamation [Chapter 144]. The parties later relocated to Zimbabwe and have been so domiciled. Their marriage was blessed with four children who are now all adults....,. On 14 July 2005, the plaintiff ...

On 14 July 2005, the plaintiff sued the first defendant for a decree of divorce and the apportionment and distribution of assets of the spouses in terms of the Matrimonial Causes Act [Chapter 5:13]. The plaintiff alleged that the marriage has irretrievably broken down to such an extent that there are no reasonable prospects of restoration of a normal marriage relationship between them in that the defendant:

1. Deserted the plaintiff in or about 1998.

2. Has sired children out of wedlock.

3.Has, on diverse occasions, assaulted the plaintiff.

4. Has expressed that he no longer has any love for the plaintiff.

5. Has, through lack of sense of duty, failed, neglected or refused to provide the plaintiff with maintenance.

The plaintiff further alleged that during the subsistence of the marriage they acquired movable assets and an immovable asset as outlined in paragraph 8 of her declaration….,.

The plaintiff sought an order:

1….,.

2. As against the first defendant:

(i) A decree of divorce.

(ii) A division of the property in equal shares, failing which payment of the sum of Z$560,500,000= (being one half share of the value of the property) with interest thereon at the prescribed rate calculated from the date of issue of summons to the date of payment, both dates inclusive....,.

The first defendant conceded that the marriage relationship has indeed irretrievably broken down, albeit, not for the factors alluded to by the plaintiff. The reasons he advanced for the breakdown included that the plaintiff, on diverse occasions during the subsistence of the marriage, deserted the matrimonial home. She deserted the matrimonial home for good on 11 August 1995 and never returned. He also asserted that, through lack of sense of duty and in spite of a Maintenance Order against her, the plaintiff failed, neglected and refused to provide maintenance for the minor children of the marriage....,.

The first defendant…, admitted to the existence of the rest of the property as stated in the plaintiff's declaration…,.

On 22 November 2007, a pre-trial conference was held at which the following issues were referred to trial:

(a) Whether it is just and equitable that matrimonial property listed in paragraph 8 of the plaintiff's declaration be divided in equal shares between the plaintiff and the first defendant.

(b) Whether or not Stand No.24 Goromonzi Business Centre is matrimonial property and what is the just and equitable manner of disposing the property.

(c) Whether or not the second defendant purchased Stand No.24 Goromonzi Business Centre and whether he made improvements as alleged or at all.

On 26 March 2008 both parties signed a document they termed Consent Paper in which the plaintiff and the first defendant consented to the dissolution of the marriage.

On the trial date, the plaintiff amended her summons with the consent of the defendants. The amendment had the effect of substituting paragraphs 2(b) of the summons and the prayer with the following:

“2(b) Division of movable assets listed under paragraph 8 of plaintiff's declaration in equal shares, failing which, payment of 50% of the value of the property by the first defendant.

2(c) Division of Stand No.24 Goromonzi Business Centre, Goromonzi in equal shares, failing which, payment of 50% of the value of the property, which value shall be determined by a valuator from the Master's list of valuators.”…,.

1. A decree of divorce be and is hereby granted.

HH674-14 : ISAAC SITHOLE vs LUCIA SITHOLE (NEE MUTORE)
Ruled By: CHITAKUNYE J

The plaintiff and defendant were joined in holy matrimony on 28 August 1999 in terms of the Marriages Act [Chapter 5:11]. Their marriage still subsists. On 1 November 2011 the plaintiff issued summons out of this court seeking a decree of divorce and other ancillary relief. The plaintiff alleged that the marriage has irretrievably broken ...

(a) The parties separated in 2005 and have not lived together as husband and wife since thus living apart for a period exceeding 12 months preceding the institution of these proceedings;

(b) The parties are incompatible; and

Due to the foregoing, the plaintiff alleged that the marriage has irretrievably broken down as provided for in section 5 of the Matrimonial Causes Act [Chapter 5:13].

The marriage was blessed with three minor children whose respective dates of birth are 8^th June 2000, 29^th March 2003, and 25^th July 2004.

The plaintiff alleged that during the subsistence of the marriage the parties acquired various movable properties and one immovable property, namely, Stand No.7027 Shana Street, Chitepo Extension, Marondera.

The plaintiff thus prayed for:-

1. A decree of divorce;

2. An order awarding custody of the three minor children to the defendant with the plaintiff enjoying reasonable rights of access upon prior arrangement with the defendant;

3. An order that the plaintiff provides for the maintenance of the three minor children in terms of an existing maintenance order granted at Marondera Magistrates Court in case no. M69/05 until each child attains the age of 18 years or becomes self supporting whichever occurs first;

4. An order that each party retains, as its own, all the movable property in that party's possession;

5. An order that the immovable property, namely, Stand No.7027 Shana Street, Chitepo Extension, Marondera, be awarded to the three minor children of the marriage in equal shares and that the plaintiff meets the costs of transfer; and

6. That each party meets their own costs of suit.

The defendant, in her plea, conceded that the marriage has indeed irretrievably broken down - albeit not for the reasons advanced by the plaintiff. She alluded to the plaintiff's conduct as the primary cause of the breakdown. In answer to the plaintiff's claim, the defendant pleaded that:-

1. The plaintiff should be ordered to provide maintenance for the minor children at an increased figure of $80= per month per child in addition to providing educational needs as per the existing Maintenance Order; and

2. The plaintiff must pay her post divorce spousal maintenance in the sum of $100= per month until she dies or remarries.

On the distribution of property, the defendant's plea was to the effect that when the plaintiff left the matrimonial home to go and live with his paramour he took with him most of the movable property including the defendant's personal documents and left her with nothing of value. She thus asked for the plaintiff to return some of the items which she itemised in paragraph 6 of her plea.

The defendant indicated, in her plea, that the parties acquired more than one immovable property during the subsistence of the marriage. Other properties acquired but which the plaintiff left out included -

(a) Stand No.323 Nyazema, Macheke;

(b) Stand No.16 Park Road, Macheke; and

The defendant, without laying a formal counterclaim, asked for a distribution of the above immovable properties as follows -

1. The plaintiff be awarded House number 88 Tatenda Street, Macheke; House number 596 Springfield, Macheke; and Stand 16 Macheke; and

2. The defendant be awarded Stand 7027 Shana Street, Chitepo Extension, Marondera and Stand 323 Macheke.

The defendant also contended that she had been excluded from the family business she helped set up and in which she is a shareholder, known as Wiseluck Enterprises (Pvt) Ltd trading as Zvakanaka 1.

She asked to be awarded a 50% share in Zvakanaka 1 operating from Stand 16 Park Road and that a 50% share in another family business, Zvakanaka 2, be awarded to the three minor children of the marriage.

In his replication, the plaintiff, inter alia, insisted that the parties did not acquire any other immovable properties during the subsistence of the marriage, or at any other time, besides Stand No.7027 Shana Street, Chitepo Extension, Marondera.

Thus, as at the close of pleadings, the plaintiff was adamant that no other immovable property was acquired whilst the defendant was insistent that other immovable properties were acquired.

As confirmed in evidence, at the pre-trial conference, the defendant was tasked with bringing forth evidence of the existence of other immovable properties. In this regard, a letter was obtained from Murewa Rural District Council confirming the existence of two other immovable properties registered in the plaintiff's name.

It was apparently because of this revelation that the issues for trial were captured as follows:-

(1) Whether or not House Number 88 Tatenda Street, Macheke forms part of the parties' property to be shared, and, if so, what is the equitable way of sharing it?

(2) What is the equitable way of sharing Stand Number 7027 Shana Street, Chitepo Extension, Marondera between the parties?

(3) Whether or not the plaintiff owns Stand 323 Macheke and Stand 16 Macheke, and, if so, how they should be distributed between the parties?

(4) How much should the plaintiff contribute towards the maintenance of the three minor children?

(5) Whether or not the defendant is entitled to any maintenance from the plaintiff, and, if so, the quantum thereof.

The issues referred for trial can be put into two categories that is: -

(i) Issues to do with the distribution of assets of the spouses; and

(ii) The issues to do with maintenance of the children and the defendant.

It is common cause, from the evidence by the parties, that they both agreed that the marriage has irretrievably broken down; neither party wished to reconcile or continue with the marriage. In the circumstances, the court has no option but to accept that the marriage has indeed irretrievably broken down and so a decree of divorce should be granted….,.

In the result it is hereby ordered that:-

1. A decree of divorce be and is hereby granted.

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

The plaintiff wife issued summons out of this court on 5 August 2010 seeking a decree of divorce on the grounds that the marriage relationship between her and the defendant husband has irretrievably broken down. In her claim, the plaintiff wife sought an order in respect of the then two minor children, maintenance in respect ...

In her declaration, the plaintiff outlined a number of reasons as to why the marriage relationship between the parties has irretrievably broken down placing all the blame on the defendant's shoulders. These reasons include the following;

(i) That the defendant consumes liquor to excess at the distress of the plaintiff.

(ii) That the defendant has ill-treated the plaintiff in a controlling, selfish, abusive, belittling and humiliating manner both in private and public.

(iii) That the defendant has neglected the plaintiff in favour of his own recreational pursuits to the distress of the plaintiff.

(iv) That the defendant has acted in an improper and inappropriate manner with other women.

(v) That the parties have been living separately from one another since February 2010 and that the plaintiff has no intention of restoring cohabitation to the defendant.

(vi) That the plaintiff believes both parties have lost love, affection, and respect for each other and that divorce is the only option….,.

In his plea and counterclaim, filed on 5 October 2010, the defendant accepted that the marriage relationship with the plaintiff has irretrievably broken down but denied that he is responsible. Instead, he blamed the plaintiff and outlined the following reasons;

(a) That, throughout the marriage, the plaintiff has improperly associated with other men.

(b) That the plaintiff has failed to treat the defendant with love, respect, support, intimacy, companionship and friendship as is expected between husband and wife.

(c) That the plaintiff has been very abusive, both physically and emotionally, towards both the defendant and the children of the marriage to the extent that the children do not want to be near her.

(d) That the plaintiff is in the habit of snorting strong intoxicating drugs whose effects has seriously affected the marriage….,.

In terms of the joint Pre-trial Conference Minute dated 14 June 2011, the following issues were referred to trial;

“The issues for trial were agreed as follows:-

2.1 To whom should custody of the minor children be awarded.

2.2 If plaintiff is awarded custody of the minor children;

2.2.1 What is the proper level of maintenance by defendant in respect of the minor children.

2.2.2 Should plaintiff be permitted to reside with minor children in the former matrimonial home.

2.3 Is defendant obliged to pay personal maintenance to plaintiff, and, if so, to what extent and for what period.

2.4 What constitutes the marital estate.

2.5 What order should be made in respect of the proprieritary matters.”

The following admissions were made;

“4 ADMISIONS MADE

4.1 The marriage has irretrievably broken down.

4.2 Plaintiff should be entitled to have, as her sole property, all household movables, save that if defendant is awarded custody of the minor children, that he shall retain the remaining TV and stereo, and one of the 2 following items, being a lounge suite and a dining room suite.”…,.

Exhibit 9(a) – (e) are e-mails dated 28 January 2013 between the plaintiff and members of Triathlon Club. They were produced by the plaintiff to rebut the defendant's allegation that the plaintiff drank beer and associated with various men….,.

Exhibit 12 is a Protection Order DV489/10, dated 18 August 2010, granted against both parties by the Magistrates Court. It simply reinforces the undisputed fact that the marriage relationship between the parties has irretrievably broken down.

I now turn to the issues to be resolved by the court.

Breakdown of the Marriage

Both the plaintiff and the defendant gave detailed evidence outlining the experiences they had in their turbulent marriage. They married each other at the young age of 19 years, and, initially, they enjoyed a normal marriage relationship characterised by love, care, and affection. They complimented each other in their business endeavours.

As time progressed, the parties lost each other and they blame each other for the breakdown of the marriage.

In her evidence, the plaintiff alluded to the reasons outlined in the declaration for the breakdown of the marriage. She testified that the defendant is a heavy drinker since 2001, and, generally, would come home late hence playing no role in the upbringing of the children. The plaintiff said the defendant, with time, developed to be very inconsiderate, selfish, and had no respect for her views. She said the defendant resorted to physical abuse by assaulting her and showed no love or affection as he would consistently rebuke her about her weight. According to the plaintiff, what broke the camel's back was the defendant's adulterous affair with their employee, one Tamara Forbes, since 2009 to date. This resulted in their separation in February 2010. The plaintiff is of the view that there is no possibility of reconciliation at all.

Under cross-examination, the plaintiff denied the allegations made against her by the defendant. The plaintiff admitted being intimate with one Martin Midler, a family friend, in June 2012, two years after her separation from the defendant. She denied that she associated with any other men or that she was intimate with Martin Midler during the marriage.

I agree with the plaintiff in this regard because even on the evidence of the affair between the plaintiff and Martin Midler produced before the court relates to the period after the separation. The plaintiff was very candid about her character in her evidence. She admitted suffering from temporal lobe epilepsy and that before the diagnosis and treatment she was of violent disposition. She also admitted having smoked dagga about four (4) times during the marriage, just for fun, with the defendant, and denied that it was in copius quantity or that she still smokes dagga. She admitted having been convicted of assault after she had beaten up Tamara Forbes for her adulterous affair with the defendant and that she has fought the defendant several times….,.

The plaintiff described the defendant's character as a swinging pendulum, at one time loving and caring but at other times a monster to her….,.

The defendant, while blaming the plaintiff for the breakdown of the marriage between the parties, conceded that reconciliation is not possible. The defendant accepted that he has been in an adulterous relationship with Tamara Forbes although he says since 2010 and only became intimate in 2011.

The plaintiff said this relationship started in 2009 and was the main cause of the breakdown of the marriage relationship between the parties. The defendant told the court that he now wants to marry Tamara Forbes.

It is clear that the marriage relationship between the parties has broken down to such an extent that there is no reasonable prospect of the restoration of the normal marital relationship. As was stated in Ncube v Ncube 1993 (1) ZLR 39 where parties are agreed that the marriage relationship cannot be salvaged and are consenting to divorce it is not necessary for the court to hear evidence in that regard in order to ascribe fault for the breakdown of the marriage. I am inclined, in this case, to grant a decree of divorce as provided for in section 5(1) of the Matrimonial Causes Act [Chapter 5:13]….,.

1. A decree of divorce be and is hereby granted.

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

Adultery is still a recognised ground of divorce in the Matrimonial Causes Act. Section 5(2)(b) reads:“Subject to subsection (1) and without prejudice to any other facts or circumstances which may show the irretrievable breakdown of a marriage, an appropriate court may have regard to the fact that; (b) The defendant ...

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

Section 10 of the Maintenance Act [Chapter 5:09] provides as follows:-“Where a spouse is proved to have committed adultery before or after the making of an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse ...

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HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

The plaintiff sued his wife, the defendant, seeking a decree of divorce and other ancillary orders.The parties were married on 5 October 1991 in Bulawayo. Their marriage was blessed with a son who has since attained the age of majority and obtained his first degree. He is staying with the ...

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

This is an appeal against part of the judgment of the High Court upholding the respondent's claim of a 50% share of an immovable property registered in the appellant's name pursuant to the distribution of property upon divorce.THE FACTSThe appellant and respondent were married in 1970 in terms of an ...

THE FACTS

The appellant and respondent were married in 1970 in terms of an unregistered customary law union. In 1971, they solemnised their marriage in terms of the African Marriages Act [Chapter 105]. On 27 May 2005 they upgraded their marriage by solemnising it in terms of the Marriage Act [Chapter 5:11]. The union was blessed with four children who are now adults.

Sometime in 2010, the respondent issued summons for divorce in the High Court seeking the following order:

“(a) A decree of divorce.

(b) Maintenance for the plaintiff.

(c) Distribution of property as listed in paragraphs 10 and 11 of the papers.

(d) That each party bears his/her own costs."

The respondent claimed that the marriage had irretrievably broken down and there were no prospects of the restoration of a normal marriage relationship. She alleged that the appellant was involved in adulterous affairs with other women and bore children out of wedlock whom he brought to the matrimonial home to be taken care of by her among other factors.

The appellant conceded that the marriage had indeed irretrievably broken down. He argued that it was the respondent who was in fact involved in adulterous affairs with other men and denied ever committing adultery....,.

In spite of the parties' not having contested the granting of a decree of divorce, the court a quo inadvertently omitted to grant such order. Its order reads as follows:-

“Accordingly, it is ordered as follows:-

1. The plaintiff be and is hereby awarded a 50% share of the immovable property, namely, 114 Lomagundi Road, Harare held under Deed of Transfer 5772/83 in the name of Govati Mhora.

2. The defendant is awarded a 50% share in the said immovable property. The immovable property shall be valued by an independent valuator appointed by the Registrar of the High Court from the list of valuators within 30 days of the date of this order.

3. The parties shall meet the costs of valuation in equal proportions.

4. Each party is hereby granted the option to buy out the other's share in the immovable property within three months from the date of receipt of the valuation report.

5. In the event that the plaintiff fails to buy out the defendant or the defendant fails to buy out the plaintiff within the three months, or such longer time as the parties may agree on in writing, the property shall be sold to best advantage by an estate agent mutually agreed to by the parties, and, in the event that they fail to agree, by one appointed by the Registrar of the High Court.

6. The net proceeds, after deducting the Real Estate Agents fees and other attendant costs, shall be deposited into the Trust Account of Jessie Majome and Company Legal Practitioners or their successors in title, and, thereafter, shared between the parties in the ratio set out above.

7. The movable property is awarded as per the joint pre-trial conference minute date-stamped 13 October 2017.

8. Each party shall bear their own costs."

Contrary to the provisions of section 7(1) of the Matrimonial Causes Act [Chapter 5:13] the order omitted to grant a decree of divorce before distributing the parties matrimonial property.

Section 7(1) of the Matrimonial Causes Act provides as follows:-

“7(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;"

The omission, though not the basis of the appeal, affected the validity of the order granted by the court a quo. The order deals with the distribution of the parties' property without a decree of divorce. Distribution of property is a consequence of divorce. A court cannot therefore distribute the divorcing spouses' property without first granting them a decree of divorce.

The issue of the omission not having been canvassed at the hearing of the appeal, the court agreed that the parties be given an opportunity to make submissions on it. Counsel for both parties, in the presence of their clients were, on 14 February 2020, given an opportunity to make submissions on the court a quo's failure to grant a decree of divorce before distributing matrimonial property.

They agreed that the court a quo's failure to grant a decree of divorce was a serious omission which has to be attended to, or that the court a quo's order be set aside and the matter be remitted to the court a quo for it to decide on whether or not to correct the omission and grant a decree of divorce and attendant relief.

I agree that the order granted by the court a quo has to be attended to, but do not agree that it has to be set aside and the matter be remitted to the court a quo. Setting aside the order and remitting the matter to the court a quo will have the effect of removing this appeal from this Court as an appeal cannot be based on an order which has been set aside. It means another appeal will have to be noted if the court a quo corrects its order by granting a decree of divorce.

The setting aside of the court a quo's order and remittal is not consistent with the provisions of section 22(1)(a) and (b)(ix) of the Supreme Court Act [Chapter 7:13] which provides as follows:

“22(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court -

(a) Shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice -

(i)…,.;

(ii)…,.;

(iii)…,.;

(iv)…,.;

(v)…,.;

(vi)…,.;

(vii)…,.;

(viii)…,.;

(ix) Take any other course which may lead to the just, speedy and inexpensive settlement of the case;"…,.

Section 22(1)(a) of the Supreme Court Act empowers this Court to, on the hearing of an appeal, vary or amend, the judgment appealed against or give such judgment as the case may require. Section 22(1)(b)(ix) empowers this Court to take any other course which may lead to the just, speedy, and inexpensive settlement of the case.

Section 22(1)(b)(ix) of the Supreme Court Act gives this court a wide discretion to take any other course to justly, speedily, and inexpensively resolve issues which the court has to deal with on appeal. Section 22(1)(b)(ix) of the Supreme Court Act was commented on and relied on by this court in the cases of Eastern Highlands Electrical (Pvt) Ltd v Gibson Investments (Pvt) Ltd 02-SC-026, SC26-02…,; Kambuzuma and Others v Athol Evans Hospital Home Complex 04-SC-118, SC118-04…,; and Hwange Colliery Company Ltd v Tendai Mukute & Another 16-SC-046, SC46-16…,.

See also the case of H Jordan v The Bloemfontein Transitional Local Authority & Another Supreme Court of Appeal of South Africa Case No 248/2002…, where the South African Supreme Court commented on the meaning of the words "take any other course which may lead to the just, speedy, and, as much as may be, inexpensive settlement of the case.”

In this case, the respondent instituted proceedings for divorce. The appellant conceded that the marriage had irretrievabley broken down. The court, by proceeding to distribute the parties' matrimonial property, can be assumed to have believed that it had granted a decree of divorce.

Setting aside the court a quo's order, and remitting the matter to the court a quo, is not in the interest of justice as it will delay the finalisation of the dispute between the parties and increase the expenses they have to incur in the hearing before the court a quo on remittal and the noting of and hearing of a fresh appeal, if the court a quo, on remittal, grants a decree of divorce and the order it had previously granted.

In my view, a correction of the court a quo's order, by adding a decree of divorce to it, will result in a just, speedy, and inexpensive resolution of the court a quo's inadvertent omission to grant a decree of divorce.

Accordingly, the court a quo's order is corrected by prefixing it with the words:

“A decree of divorce be and is hereby granted.”

View Appeal
HH446-18 : EMMACULATA MHORA vs GOVATI MHORA
Ruled By: CHIRAWU-MUGOMBA J

The famed Nigerian author, feminist, and motivational speaker, Chimamanda Ngozie Adichie, in one of her TED talks discussed an interesting topic titled, “The dangers of a single story.” She talked about how she was initially shaped by one narrative on life but she later realized how dangerous such a trajectory ...

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SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI
Ruled By: GARWE JA, GOWORA JA and PATEL 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 ...

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

The issue here is whether the plaintiff complied with Order 35 Rule 272(1) of the High Court Rules, 1971.
The salient facts are the following:

The plaintiff issued out, at this court, summons incorporating a declaration on 10 June 2011. The summons, together with the plaintiff's declaration, were served on the defendant personally by the Deputy Sheriff of Bulawayo on 10 June 2011.

The defendant did not contest the summons.

After the expiry of the dies induciae, the plaintiff set the matter down for 28 July 2011. The notice of service of set down was served on the defendant personally on 14 July 2011.

The defendant was not in attendance on 28 July 2011.

It is common cause that the plaintiff did not serve the defendant with a notice described in Rule 272(1) supra. Rule 272(1) provides:

“(1) In an action for restitution of conjugal rights, divorce, judicial separation or nullity of marriage where the defendant has failed to enter appearance –

(a) If the declaration has not been served with the summons, the plaintiff wishing to obtain judgment shall file and deliver his declaration and either simultaneously or subsequently a notice in accordance with Form No.30 calling upon the defendant, if he wishes to defend, to purge his failure to enter appearance to plead, answer or except or make claim in reconvention within twelve days of the date of delivery of the notice and informing him that in default thereof judgment will be prayed against him;

(b) If the declaration has been served with the summons, the plaintiff wishing to obtain judgment shall file and deliver the aforesaid notice to the defendant after the expiry of the dies induciae, as calculated in the proviso to Rule 119.

(2) Thereafter, the plaintiff may –

(a) In the case of an action for conjugal rights, set the case down for trial without notice to the defendant.

(b) In the case of a claim for a final order of divorce, for judicial separation, or for nullity of marriage, set the case down for trial but shall serve personal notice of set down upon the defendant, and, in such case, the court shall not proceed to trial unless it is satisfied that the personal notice of the defendant has been drawn to the fact that the matter has been set down for trial or that for good and sufficient reason the giving of personal notice is impracticable.”…,.

Reading Rule 272(1)(b) supra, in isolation, the plaintiff is not entitled to the order prayed for because she did not file and deliver to the defendant the notice defined in Rule 272(1)(a) supra.

But, when Rule 272(1) is read with Rule 269A a different picture emerges.

Rule 269A reads –

“The summons commencing an action mentioned in this Order may, at the option of the plaintiff, be issued in Form No.30A, to which a copy of the plaintiff's declaration shall be annexed, in which case the provisions of Rule 272 shall not apply to such an action.”…,.

The summons in this case was issued in Form 30A and a copy of the plaintiff's declaration was annexed thereto. Both the summons and declaration were served on the defendant.

In the circumstances, the provisions of Rule 272 do not apply. There is no need for the plaintiff to file and deliver the notice prescribed in Rule 272(1).

This construction does not, however, dispense with the requirement for the personal service of the notice of set down as discussed in Strydom v Strydom 2003 (1) ZLR 379 (H).

The requirement that there be personal service is not only premised on the provisions of Rule 272. It is also based on the salutary rule of practice. As stated by TREDGOLD CJ in Butler v Butler 1951 SR 122;

“It has always been the practice in this court that where the divorce is sought on the grounds of desertion, the restitution order must come to the personal knowledge of the defendant: in other words, although he has knowledge of the proceedings, and has authorized attorneys to act on his behalf, the court has always insisted that, in its final stages, he should be given personal notice of the proceedings in order that he might reconsider his position.

It seems illogical that in other cases where a divorce reaches its final point it should be allowed to proceed without any notice to the defendant…,.

So, this seems to me to be a salutary rule of practice.”…,.

See also Africa v Africa 1944 CPD 78; Le Roux v Le Roux 1957 R & N 831 (SR); and Barkehuizen v Kruger 1959 (3) SA 506 (O).

This salutary rule is informed by the irreparable harm that may result in a final decree of divorce. Divorce results in a finality in the change of status of the parties.

Accordingly, because the plaintiff filed and served the summons in Form 30A, together with a declaration, there is no need for her to serve the notice prescribed in Rule 272.

It is for these reasons that I granted the divorce as prayed for.

HH07-12 : IGNATIOUS GANYO vs MAULIDIA CHAONZA
Ruled By: CHITAKUNYE J

The plaintiff and defendant were married in terms of the Marriages Act [Chapter 5:11] on 14 January 2005 at Harare. Their marriage was blessed with one child born on 25 November 2008.

On 28 June 2010, the plaintiff sued for a decree of divorce on the ground that the marriage has irretrievably broken down to such an extent that restoration to a normal marriage relationship is impossible. He outlined the causes of the breakdown as including the following:-

(a) That the defendant has denied him love, respect, affection, and companionship ordinarily expected of a married couple;

(b) The defendant has demonstrated a quarrelsome and bellicose attitude towards the plaintiff whom she has physically and verbally abused. The plaintiff had to apply for a protection order in terms of the Domestic Violence Act [Chapter 5:16] on 12 February 2010;

(c) Despite the protection order, the defendant has continued to harass the plaintiff making life unbearable for him;

(d) The defendant is in the habit of forcibly taking money from the plaintiff;

(e) The defendant harasses and insults the plaintiff in front of school teachers and pupils at the school where he is the Headmaster;

(f) The parties have, throughout their marriage, exhibited all signs of incompatibility; and

(g) For a period of about 13 months, the defendant lived in an adulteress relationship with a truck driver in South Africa. Here in Zimbabwe, the defendant has a lover whom she has refused to cut ties with.

As a result of this, the plaintiff alleged, that, the marriage has irretrievably broken down.

He therefore prayed for a decree of divorce and that the defendant be awarded custody of the minor child and all the movable property they acquired during their marriage. He wished to retain the property he acquired before the marriage.

The defendant, in her plea, did not concede that the marriage had irretrievably broken down. She made a bald denial of the improper conduct alleged by the plaintiff against her. She, instead, contended, that, it is in fact the plaintiff who committed adultery.

She revealed, in her plea, that, the parties also acquired an immovable property in Domboshawa which is apparently registered in the defendant's name. She contended, that, that property/Stand should be awarded to their child.

The defendant made a counter claim in which she sought that the immovable property in Domboshawa be awarded to their child.

At a pre-trial conference held on 11 February 2011, the parties reached settlement on a number of issues. They agreed that:-

1. Custody of the minor child be awarded to the defendant.

2. The maintenance order granted in case number M306/2010 in the Magistrates Court remain in operation until either party approaches the Maintenance Court for variation.

3. The minor child remains on the plaintiff's medical aid scheme.

4. The undeveloped residential stand in Domboshawa be registered in the name of their minor child.

The issues referred to trial include the following:-

1. Whether the marriage has irretrievably broken down or not.

2. What constitutes movable matrimonial property and how it is to be shared?

3. Whether the parties own a General Dealer's shop, and, if so, whether it is subject to distribution.

On 12 September 2011, when the parties appeared before me for trial, they had apparently resolved some of the issues referred to trial. The only aspect on movable property pertained to the General Dealer's shop. The plaintiff had resolved, that, the defendant should get all the movable property of the marriage.

In this regard, the plaintiff amended his prayer in paragraph (f) to now read -

“An order that all property acquired during the subsistence of the marriage be awarded to the defendant.”

The aspect of the General Dealer's shop was based on the defendant's perception that the shop belonged to the plaintiff and that it was still operating.

When the plaintiff testified that he had been leasing the shop, and he had since ceased the operations, I did not hear the defendant to deny that.

All she said was she expected to get something from the operations without specifying what she now needed.

It is clear to me, that, the General Dealer shop is in effect no longer a sustainable issue.

The issue that remained to be resolved is whether the marriage had irretrievably broken down.

The plaintiff, in his testimony, maintained, that, the marriage had irretrievably broken down and he had no intention of restoring it to a normal marriage relationship. He no longer had any love or affection for the defendant. He maintained the grounds for the breakdown as contained in his declaration.

It was his evidence, that, when the defendant went to South Africa he called her to come back but the defendant refused. The defendant remained in South Africa for 13 months serve for 2 weeks when she came after he had told her that their child was ill after which she went back against his wish.

When the defendant came back from South Africa they did not stay together and are still not staying together as husband and wife.

The other ground he highlighted was that during their stay together they became so incompatible that quarrels were numerous and the defendant would harass him to an extent whereby he sought and obtained a protection order against her in terms of the Domestic Violence Act [Chapter 5:16].

Faced with the above, the defendant had not much to show that the marriage had in fact not irretrievably broken down.

Thus, whilst saying the marriage had not irretrievably broken down, she did not deny that the two were no longer staying together as husband and wife. She could not show that since the issuance of the summons they had reconciled or even made efforts to reconcile. She, instead, contended, that, the plaintiff is seeking a divorce order so that he can marry another woman.

Section 5(1) of the Matrimonial Causes Act [Chapter 5:13] sates that:

“An appropriate court may grant a decree of divorce on the grounds of irretrievable break-down 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.”

There are two characteristics of irretrievable breakdown of the marriage, namely:

(a) The marriage relationship is not normal anymore; and

(b) There is no reasonable prospect of the restoration of a normal marriage relationship.

In considering the characteristics, an objective test is used.

In Kumirai v Kumirai 2006 (1) ZLR 13 (H) MAKARAU J…, said…, 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.”

Equally, in Murada v Murada 2008 (2) ZLR 326 (H)…, NDOU J had this to say:

“…, it is hardly possible for a court to find that there is a reasonable prospect of reconciliation between parties when one of them is determined to bring the marriage to an end.”

Thus, where the plaintiff insists the marriage is at an end, and he or she has no intention of reconciling, it is clear the marriage cannot be saved.

In Kumirai v Kumirai 2006 (1) ZLR 13 (H)…, MAKARAU J aptly stated that:

“To satisfy court that the marriage still has some life in it, one has to adduce evidence to the effect, that, after the filing of the summons, the parties have reconciled and are living after the manner of husband and wife.”

In casu, neither the plaintiff nor the defendant gave evidence to the effect that they have reconciled or that they are now living together as husband and wife. Evidence led showed that they are not living together and the plaintiff has no intention of reconciling.

The plaintiff persisted with his argument that the marriage has irretrievably broken down. He maintained the grounds for the breakdown as in his declaration.

The defendant, apart from failing to show that the parties have reconciled, was unable to show that the specific allegations laid against her by the plaintiff were in fact false.

All she did was to tender a bald denial of the allegations.

That, in my view, was highly inadequate to show that there was reasonable prospect of restoring the marriage to a normal marriage relationship.

Accordingly, I find that the marriage between the plaintiff and defendant has indeed irretrievably broken down to such an extent that there is no reasonable prospect of a restoration to a normal marriage relationship.

As the other aspects had virtually been either agreed upon or not persisted with, I, accordingly make the order that:

1. A decree of divorce be and is hereby granted.

2....,.

3....,.

4....,.

5....,.

6....,.

7....,.

8....,.

9....,.

10. Each party shall bear their own costs of suit.

HH31-08 : G vs G
Ruled By: MAKARAU JP

The plaintiff and the defendant were married at Harare on 5 September 1998. Two daughters were born of the marriage. These were born in 2001 and 2004 respectively.

On 31 January 2007, the plaintiff issued summons praying for a decree of divorce to issue on the grounds that his relationship with the defendant had broken down to such an extent that there is no possibility of reconciliation. In the main, the plaintiff lamented the fact that he had been denied conjugal rights by the defendant for a period in excess of three years.

The action was defended, and, after the pleadings in the matter had closed, the parties appeared before a judge in chambers for a pre-trial conference on more than one occasion.

During the discussions, under the guidance of the judge at the pretrial conference, the parties managed to agree, that, it was in the best interests of the minor children that their custody be awarded to the mother upon divorce with the plaintiff enjoying reasonable rights of access to the children.

The parties also agreed, in the main, as to how to apportion the movable assets they jointly acquired during the subsistence of the marriage.

They also agreed that the immovable property in Ruwa, being a vacant Stand, be registered in the names of the minor children.

The defendant however did not agree that her marriage to the plaintiff had broken down to such an extent that reconciliation is impossible. She averred, that, with proper counseling, the parties could resume a normal married life.

It was this sole issue that the judge presiding over the pre-trial conference referred to trial.

At the trial of the matter, the plaintiff testified as to the frustrations he has endured during the subsistence of the marriage in exercising conjugal rights with the defendant. The record is replete with the minute details of how each attempt at intercourse was not satisfactory for him and left him frustrated. He further testified as to how, in an effort to enhance their intimacy, he procured an adult DVD on one occasion, and on another, he purchased for the defendant a lubricant to ease things for her.

All this came to naught.

Realizing that they had a real problem in their marriage, the parties were counseled by a married couple who arranged counselling sessions for them. This appears to have been professional counseling.

The problem persisted.

Relatives tried to talk to them, and, still the plaintiff felt frustrated by what he perceived as the defendant's failure to perform her side of the bargain in the marriage.

He then resolved to terminate the marriage and caused summons to be issued in the matter.

Under cross examination, the plaintiff explained how the two daughters they have were born in the marriage which he had described as unfulfilling. The record again carries the minute details of how, according to the plaintiff, the second daughter was conceived. It is not necessary, for the purpose of this judgment, that I repeat the graphic evidence that was led in this regard.

In my view, the plaintiff gave his evidence well. His frustrations were almost palpable as he testified. He is an articulate young man who impressed me as being honest and fair.

The defendant is equally articulate and very earnest.

She testified in defence of her marriage to the plaintiff. It is clear that she values her marriage and is still affectionate towards the plaintiff. She is a devout Christian who believes in the sanctity of marriages.

Her evidence was to the effect, that, the marriage has not broken down irretrievably as she still loves the plaintiff. She denied the allegation that she had denied the plaintiff conjugal rights and was of the view that the problems they are facing are capable of solution. She further testified as to how the plaintiff walked out of some of the counseling sessions they were undergoing and failed to turn up for others.

In my view, the facts of this matter are largely common cause.

The parties have had some problems in their marriage. The problems are not freshly occurring or transient. The parties have debated the issue before between themselves and in the company of others. Some of the questions that the defendant put to the plaintiff, in cross-examination, were put to him prior and in other fora. They have sought counselling on the issue and this has not yielded the desired result. She, at one time, sought medical treatment and again it did not assist the parties in enhancing their intimacy. It may be well true, as she says, that the problem, on her part, is psychological and will require psychological intervention.

The issue that falls for my determination is whether, in light of the evidence before me, I am satisfied that the marriage between the parties has broken down irretrievably and that a decree of divorce should issue.

In determining this matter, I have sought guidance from the provisions of section 5 of the Matrimonial Causes Act [Chapter 5:13] which provides that:

“(1) An appropriate court may grant a decree of divorce on the grounds 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.”

It is the settled position at law, as recognized by this court, that, this section vests wide discretion in the appropriate court seized with a divorce matter to either grant the divorce or postpone the hearing of the matter to give the marriage another chance where the court is of the view that this is the appropriate approach to take: see Chiviya v Chiviya 1995 (1) ZLR 210 (H): Kangai v Kangai HH52-07: and Mashonganyika v Mashonganyika HH10-08.

The introduction of the concept of irretrievable breakdown of marriage, in 1985, was to move away from the fault or matrimonial offence principle to an objective assessment of the state of the marriage by the appropriate court.

It is my considered view, that, once one party to the marriage has expressed an intention to end the marriage and remains of that view at the time of the hearing of the matter, in the absence of any evidence to show that he or she may have changed their mind between the issuance of summons and the hearing of the matter, the court will be hard pressed to order the parties to reconsider their positions.

It takes two to tango.

In casu, as stated elsewhere above, the parties have genuine problems that have persisted for at least three (3) years. Counselling, to date, has not assisted in resolving their problems. It is therefore idle, in my view, on the part of the court, to postpone the matter to enable the parties to seek further counseling in the matter.

The parties separated in July 2007. He has not been back. Since he departed from the matrimonial home, there is no evidence that the parties attempted to resolve their problem or that they took any active steps in coming together again as husband and wife.

It is in my view, again, idle for the court to believe that what the parties in this matter require is more time to reconsider their respective positions.

The facts of this matter are, in my view, to be contrasted with the facts in Mashonganyika v Mashonganyika HH10-08 where the parties were sharing board and bed, including affording each other conjugal rights well up to a fortnight before the date of the hearing. Rather than showing incompatibility, the parties in that case showed that they could continue as husband and wife, were for some time, and the plaintiff only changed their daily routines because the matter had been set down for hearing. If the matter had taken long before being set down, it is easy to imagine that normal marriage relations would have continued between the parties. It is not cynical in the least to suggest that normal marriage relations between the two were interrupted by the set down of the matter.

Courts will not grant divorces lightly.

Divorces change one's status at law and socially. Where the parties have children, a divorce has the effect of separating the children from one of their parents save for regulated periods of access by the non-custodian parent. Generally, a divorce has the effect of impoverishing the divorcing couple as it parcels out jointly held assets into two separate estates: each estate obviously becoming less in worth than the jointly held estate. Thus, where there is evidence that a marriage can be salvaged, or where the justice of the case demands, the court will exercise its discretion against granting a decree of divorce.

Neither of these two aspects appears to me to characterize the matter before me.

Equally important, in my view, is to note, that, while courts will not lightly grant a decree of divorce, defendants who argue that their marriages to plaintiffs have not broken down irretrievably have the duty to place before the court evidence tending to show that there are prospects of reconciliation and that the plaintiff has been responding well to overtures of reconciliation.

The court cannot act on the mere belief of one of the parties that the marriage will someday blossom into its former vibrancy and passion.

The parties agreed on how to share their assets in the event of a divorce. I shall give effect to this agreement in the divorce order that I issue....,.

1. A decree of divorce is hereby issued.

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

The Matrimonial Causes Act [Chapter 5:13] provide sanction issues of divorce and distribution or apportionment of property. Divorce is granted in circumstances where it would have been shown that the marriage has irretrievably broken down. Adultery is still a recognised ground of divorce, and, as such, it is still part ...

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO
Ruled By: KAMOCHA J

The plaintiff and defendant got married on 18 September 2007. The plaintiff was a widower and the defendant was a divorcee at the time of the marriage. Each had two children from the previous marriage but they had no children together. They had started cohabiting two years before they got married.

Sadly, two years after solemnizing their marriage, the plaintiff instituted divorce proceedings on 19 November 2009 claiming an order for a decree of divorce and ancillary relief.

He alleged, that, the marriage had irretrievably broken down owing to the following reasons:

(a) The defendant had allegedly verbally abused and ill-treated his children from his former marriage.

(b) That the parties do not live together as husband and wife and they are not sharing conjugal rights which scenario is inconsistent with a normal marriage relationship; and

(c) That the parties quarrel verbally quite often and they have lost all love and affection for each other....,.

In her plea, the defendant..., denied any wrongdoing on her part and went on to allege that their marriage had been besieged by mistrust and unfaithfulness which made the parties intolerant of each other....,.

The parties appeared before a judge for a pre-trial conference whereat it was agreed that the issues for trial were these:

“(a) Whether or not the breakdown of the marriage was caused by the issues outlined by plaintiff in his declaration or by the issues outlined by the defendant in her plea;

(b) Whether the property listed by the defendant forms part of the matrimonial property or not; and

(c) What is the equitable sharing of the available matrimonial assets.”...,.

It was clear from their stories that their marriage had indeed irretrievably broken down although the defendant, at one stage, had told the court that she did not want the marriage to be dissolved. Her reason for that was that the plaintiff had infected her with the HIV virus in 2006 before they solemnized their marriage in 2007.

After the infection, she discovered that he was HIV positive and was taking ARVs.

When she also wanted access to ARV treatment at Mbizo Barracks Clinic she was told she could not as she was not a soldier or the plaintiff's wife. So, she decided to marry him in 2007 in order to access ARV treatment as the plaintiff's wife.

The marriage was a marriage of convenience.

She, however, conceded, that, ARV tablets are now easily available at hospitals and clinics. She further conceded that since their marriage had irretrievably broken down it should be dissolved.

The plaintiff denied infecting the defendant with the HIV virus.

It is difficult to make a finding on which of the parties brought the HIV virus into their new marriage as they both admitted that they did not go for an HIV test before they started to cohabit. One or both of them could have got the virus from the previous marriage....,.

(a) A decree of divorce be and is hereby granted;

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

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Decree of Divorce re: Civil Rites or Solemnized Marriage iro Approach, the Fault Principle and Triable Issues

HH65-13 : REGGIENALD TANGIRAI vs THERESA HAZVINEYI TANGIRAI
Ruled By: GUVAVA J

View Appeal
HH91-13 : ALPHEUS MAGUMISE vs CRESSY MAGUMISE (NEE DZINGIRAI)
Ruled By: UCHENA J

HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO
Ruled By: UCHENA J

HH23-14 : AUSTEN GONESE vs LOWIS GONESE
Ruled By: UCHENA J

HH181-14 : SHEILA CHINYAMAKOBVU vs EMMANUEL CHINYAMAKOBVU
Ruled By: MAWADZE J

Appealed
SC51-17 : A SHONHAYI DENHERE vs MUTSA DENHERE (Nee MARANGE)
Ruled By: GOWORA JA, GUVAVA JA and MAVANGIRA JA

HH31-15 : ISAAC CHAMBA vs MAYBE NGWARATI
Ruled By: CHITAKUNYE J

HH35-15 : TENDAI PANGETI vs CHRISTINA NYAGUMBO
Ruled By: CHITAKUNYE J

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

HH121-15 : GLADYS CHIGUNDE (nee Mautsi) vs DAVID CHIGUNDE
Ruled By: CHITAKUNYE J

HH150-15 : SHINGIRAI PHILIP KATSANDE vs ANGELINE KATSANDE (nee NYAHWEMA)
Ruled By: CHITAKUNYE J

HH312-17 : RACHEL CHIPARAUSHE (nee CHIMFWEMBE) vs LANGTON CHIPARAUSHE and JOHANNES CHIPARAUSHE
Ruled By: CHITAKUNYE J

HH674-14 : ISAAC SITHOLE vs LUCIA SITHOLE (NEE MUTORE)
Ruled By: CHITAKUNYE J

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal
HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

View Appeal
HH446-18 : EMMACULATA MHORA vs GOVATI MHORA
Ruled By: CHIRAWU-MUGOMBA J

View Appeal
SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI
Ruled By: GARWE JA, GOWORA JA and PATEL JA

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

HH07-12 : IGNATIOUS GANYO vs MAULIDIA CHAONZA
Ruled By: CHITAKUNYE J

HH31-08 : G vs G
Ruled By: MAKARAU JP

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO
Ruled By: KAMOCHA J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

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Law Portal Zimbabwe

Decree of Divorce re: Civil Rites or Solemnized Marriage iro Approach, the Fault Principle and Triable Issues

HH65-13 : REGGIENALD TANGIRAI vs THERESA HAZVINEYI TANGIRAI Ruled By: GUVAVA J

View Appeal HH91-13 : ALPHEUS MAGUMISE vs CRESSY MAGUMISE (NEE DZINGIRAI) Ruled By: UCHENA J

HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO Ruled By: UCHENA J

HH23-14 : AUSTEN GONESE vs LOWIS GONESE Ruled By: UCHENA J

HH181-14 : SHEILA CHINYAMAKOBVU vs EMMANUEL CHINYAMAKOBVU Ruled By: MAWADZE J

Appealed SC51-17 : A SHONHAYI DENHERE vs MUTSA DENHERE (Nee MARANGE) Ruled By: GOWORA JA, GUVAVA JA and MAVANGIRA JA

HH31-15 : ISAAC CHAMBA vs MAYBE NGWARATI Ruled By: CHITAKUNYE J

HH35-15 : TENDAI PANGETI vs CHRISTINA NYAGUMBO Ruled By: CHITAKUNYE J

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA Ruled By: CHITAKUNYE J

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA Ruled By: CHITAKUNYE J

HH121-15 : GLADYS CHIGUNDE (nee Mautsi) vs DAVID CHIGUNDE Ruled By: CHITAKUNYE J

HH150-15 : SHINGIRAI PHILIP KATSANDE vs ANGELINE KATSANDE (nee NYAHWEMA) Ruled By: CHITAKUNYE J

HH312-17 : RACHEL CHIPARAUSHE (nee CHIMFWEMBE) vs LANGTON CHIPARAUSHE and JOHANNES CHIPARAUSHE Ruled By: CHITAKUNYE J

HH674-14 : ISAAC SITHOLE vs LUCIA SITHOLE (NEE MUTORE) Ruled By: CHITAKUNYE J

Appealed HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS Ruled By: MAWADZE J

HH174-16 : BASIL MAKURURU vs DERICK VORI Ruled By: MWAYERA J

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: UCHENA J

Appealed SC89-20 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

View Appeal HH446-18 : EMMACULATA MHORA vs GOVATI MHORA Ruled By: CHIRAWU-MUGOMBA J

View Appeal SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI Ruled By: GARWE JA, GOWORA JA and PATEL JA

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE Ruled By: NDOU J

HH07-12 : IGNATIOUS GANYO vs MAULIDIA CHAONZA Ruled By: CHITAKUNYE J

HH31-08 : G vs G Ruled By: MAKARAU JP

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE Ruled By: MWAYERA J

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO Ruled By: KAMOCHA J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

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Law Portal
Zimbabwe

HH65-13 : REGGIENALD TANGIRAI vs THERESA HAZVINEYI TANGIRAI
Ruled By: GUVAVA J

View Appeal
HH91-13 : ALPHEUS MAGUMISE vs CRESSY MAGUMISE (NEE DZINGIRAI)
Ruled By: UCHENA J

HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO
Ruled By: UCHENA J

HH23-14 : AUSTEN GONESE vs LOWIS GONESE
Ruled By: UCHENA J

HH181-14 : SHEILA CHINYAMAKOBVU vs EMMANUEL CHINYAMAKOBVU
Ruled By: MAWADZE J

Appealed
SC51-17 : A SHONHAYI DENHERE vs MUTSA DENHERE (Nee MARANGE)
Ruled By: GOWORA JA, GUVAVA JA and MAVANGIRA JA

HH31-15 : ISAAC CHAMBA vs MAYBE NGWARATI
Ruled By: CHITAKUNYE J

HH35-15 : TENDAI PANGETI vs CHRISTINA NYAGUMBO
Ruled By: CHITAKUNYE J

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

HH121-15 : GLADYS CHIGUNDE (nee Mautsi) vs DAVID CHIGUNDE
Ruled By: CHITAKUNYE J

HH150-15 : SHINGIRAI PHILIP KATSANDE vs ANGELINE KATSANDE (nee NYAHWEMA)
Ruled By: CHITAKUNYE J

HH312-17 : RACHEL CHIPARAUSHE (nee CHIMFWEMBE) vs LANGTON CHIPARAUSHE and JOHANNES CHIPARAUSHE
Ruled By: CHITAKUNYE J

HH674-14 : ISAAC SITHOLE vs LUCIA SITHOLE (NEE MUTORE)
Ruled By: CHITAKUNYE J

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal
HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

View Appeal
HH446-18 : EMMACULATA MHORA vs GOVATI MHORA
Ruled By: CHIRAWU-MUGOMBA J

View Appeal
SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI
Ruled By: GARWE JA, GOWORA JA and PATEL JA

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

HH07-12 : IGNATIOUS GANYO vs MAULIDIA CHAONZA
Ruled By: CHITAKUNYE J

HH31-08 : G vs G
Ruled By: MAKARAU JP

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO
Ruled By: KAMOCHA J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC