MUSAKWA
J: The plaintiff instituted action for divorce and ancillary relief. The
parties married under customary law in 1991. The marriage was later solemnized
under the Marriages Act in 1997. There are parties two minor children one of
whom is now a major.
In
his evidence in-chief plaintiff testified that he last shared conjugal rights
with defendant four years previously. Attempts at improving relations failed.
He did not give details of what efforts he made to mend the relationship save
that defendant's parents refused to be involved.
Between
1993 and 1998 plaintiff worked for the Ministry of Information and Publicity.
In 1995 he was allocated house number 143, 16 Honde Close, Nyameni, Marondera
on a rent-to buy basis. He paid off the purchase price by way of lump sum in
1999. Repayments used to be deducted from his salary. He claimed that defendant
did not contribute anything towards the purchase of the house. As a result he
claimed a seventy percent share of the house. He stated that he would be able
to purchase defendant's share within one month. He also sought to remain in
occupation of the house and offered to secure alternative accommodation for
defendant.
Plaintiff claimed that he should be awarded
custody of the two children as he is gainfully employed and he spends more time
with them. He claimed that defendant devotes no time to the children as she is
a cross-border trader. On some occasions defendant was said to have spent two
months away from home. On her return she would spend only about a week. In the
event that custody is granted to defendant plaintiff said he can provide
maintenance.
Under
cross-examination plaintiff denied sharing conjugal rights with defendant two
weeks before the commencement of trial. This is because he claimed not to be on
talking terms with defendant. He claimed not to share meals with defendant and
that he only eats meals prepared by their daughter. However, he admitted that
defendant had returned to the main bedroom. This was after he had served her
with summons. He also admitted that he has two children with another woman.
On
the other hand defendant claimed she still loves plaintiff although she
conceded that plaintiff no longer loved her. This rift was attributed to the
fact that plaintiff had shifted her affection to another woman with whom he is
staying. She stated that they have been sharing conjugal rights and had done so
two weeks before trial. She also testified that plaintiff started to ill-treat
her from 1999. In January 2008 plaintiff is said to have taken away his clothes
from the matrimonial home. He makes some visits to the matrimonial home.
Defendant was asked if they can still live as husband and wife under such
circumstances. Her response was that it is difficult where one spouse no longer
loves the other.
Defendant
also testified that the elder child had finished 'O' level whilst the younger
one was doing grade seven. The children only join her during holidays. She
conceded going to South
Africa to source goods for resale and this
she attributed to ill-treatment by plaintiff. At some stage she claimed she
resorted to vending meat illegally. She would return home and find the doors
locked. In February 2009 she was locked out for two nights. She was only
restored after she secured a court order. In October and November she was away
for two weeks.
She
said she contributed towards the family's welfare. The only thing she did not
contribute was school fees. She dyed cloths which she sold. The proceeds were
used on food and household utensils. She also purchased clothes for herself and
the children as well as purchasing a carpet. This was between 1999 and 2002.
Plaintiff then chased her away from Mutare and she went to stay in Marondera.
As
regards the matrimonial home she indicated that she wants to be awarded a forty
five percent share. She also indicated that she wants to reside in the
matrimonial house until the younger child is eighteen years old. She also
stated that the plaintiff should provide maintenance in the sum of R400 for
herself and the children.
Under
cross-examination defendant stated that she first knew about plaintiff's
infidelity in 1999. She said she knew of two women with whom plaintiff has
children. Regarding conjugal relations she said she consented because she loves
plaintiff. The other reason she proffered was that if she had turned him down
he would have used this as a ground for seeking divorce. Despite her avowed
love for plaintiff she conceded that plaintiff cannot be compelled to love her.
In
his closing address Mr Govere urged
the court to find that the marriage relationship has irretrievably broken down.
He submitted that it was incredible that the parties enjoy conjugal relations
when they do not even communicate with each other. He also referred to
plaintiff's evidence that defendant's parents were unco-operative when he
sought their assistance in mending the sour relations. He also submitted that
the fact of adultery serves to confirm plaintiff's loss of love and affection
for defendant.
On
custody, apart from citing relevant authorities Mr Govere submitted that custody must be awarded on the basis of a
parent's ability to communicate and provide basic needs. He also pointed out
the children's preferences, especially the younger one. In the event of custody
being awarded to defendant, he submitted that plaintiff can only afford US$30
per month including paying school fees and buying clothes for the children.
In
respect of the matrimonial property Mr Govere
submitted that defendant had conceded that she did not make a direct
contribution. He indicated that plaintiff wants buy out defendant's share
within a month of the divorce order being granted. In the alternative, he
submitted that the house should be sold and the proceeds shared in the ration
of seventy percent for plaintiff and thirty percent for defendant.
The
first issue is to determine whether the marriage relationship between the
parties has irretrievably broken down to such an extent that there are no
prospects of the restoration of a normal marriage relationship. Section 5 (2)
of the Matrimonial Causes Act [Chapter
5:13] provides that:-
(1) 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.
(2)
Subject to subsection (1), and without prejudice to any other facts or
circumstances which may show the irretrievable
break-down
of a marriage, an appropriate court may have regard to the fact that—
(a)
the parties have not lived together as husband and wife for a continuous period
of at least twelve months
immediately
before the date of commencement of the divorce action; or
(b)
the defendant has committed adultery which the plaintiff regards as
incompatible with the continuation of a
normal
marriage relationship; or
(c)
the defendant has been sentenced by a competent court to imprisonment for a
period of at least fifteen years
or
has, in terms of the law relating to criminal procedure, been declared to be a
habitual criminal or has
been
sentenced to extended imprisonment and has, in accordance with such declaration
or sentence, been
detained
in prison for a continuous period of, or for interrupted periods which in the
aggregate amount to, at
least
five years, within the ten years immediately before the date of commencement of
the divorce action; or
(d)
the defendant has, during the subsistence of the marriage—
(i)
treated the plaintiff with such cruelty, mental or otherwise; or
(ii)
habitually subjected himself or herself, as the case may be, to the influence
of intoxicating liquor or
drugs
to such an extent;
as
is incompatible with the continuation of a normal marriage relationship;
as
proof of irretrievable break-down of the marriage.
(3)
If it appears to an appropriate court that there is a reasonable possibility
that the parties may become reconciled
through
marriage counsel, treatment or reflection, the court may postpone the
proceedings to enable the parties
to
attempt a reconciliation.
(4)
Where proceedings have been postponed in terms of subsection (3), they may be
resumed, with leave of the
court,
before any other presiding officer or judge of the court.”
The defendant maintained that she still loved
plaintiff although she acknowledged that plaintiff no longer loved her. In
terms of section 5 (3) of the Act a court may postpone the proceedings if it
appears that there are prospects of a reconciliation. In support of defendant's
claim that she still loved plaintiff, she testified that she had been intimate
with plaintiff two weeks prior to the commencement of trial. This assertion was
challenged by plaintiff.
There
are other factors that suggest that the marriage has irretrievably broken down.
Whilst plaintiff's evidence to the effect that he does not communicate with
defendant went unchallenged, defendant's own evidence shows maltreatment at the
hands of plaintiff. She testified that she had been chased away from Mutare in
1999 and she went to stay in Marondera. There is also the evidence that at some
stage she was locked out of the matrimonial house. She was only restored
through a court order. Then there were the acts of adultery that were admitted
by plaintiff. It was also not in dispute that at the time of trial plaintiff
was staying with another woman.
Defendant
did not suggest in what way the marriage may be salvaged. This is particularly
pertinent if one considers plaintiff's testimony to the effect that defendant's
family spurned his overtures for them to lend a hand in reconciling the
parties. In light of the available evidence I am satisfied that the marriage
relationship has irretrievably broken down such that there are no prospects of
the restoration of a normal marriage relationship.
On
custody, the elder of the parties' two children is now a major. However, both
parties want custody of the younger child as was the case in respect of the
elder child. Although plaintiff contested this issue he had long conceded that
custody be awarded to defendant in his replication. Since no amendment was
sought, it was futile on the part of plaintiff to pursue this issue. Even the
authorities cited by plaintiff's counsel on the best interests of the child are
of no consequence.
Plaintiff conceded that he would provide
maintenance in the event of custody being awarded to defendant. This would be
in addition to paying school fees and other school requirements. As for the
quantum of maintenance, the court will take into account that plaintiff was not
earning much in local currency as at the time of trial. However, he had acceded
to paying the equivalent of R300 for both children. He did say he supplements
his salary through other means that he did not specify. That is why he was able
to pay for the children's boarding school fees. There was also mention of a
farm although plaintiff said it was the subject of a dispute with another
beneficiary. Overall I would hold that maintenance in the sum of US$60 per
month would meet the justice of the case. This is because I have taken into
account that plaintiff had offered to pay defendantUS100 for rentals in the
event she moved out of the matrimonial home. The defendant can always seek a
variation when there is a change in plaintiff's circumstances.
Regarding
the division of assets, section 7 of the Act provides that:-
(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;
(b)
the payment of maintenance, whether by way of a lump sum or by way of
periodical payments, in favour of
one
or other of the spouses or of any child of the marriage.
(2)
An order made in terms of subsection (1) may contain such consequential and
supplementary provisions as
the
appropriate court thinks necessary or expedient for the purpose of giving
effect to the order or for the purpose of
securing
that the order operates fairly as between the spouses and may in particular,
but without prejudice to the
generality
of this subsection—
(a)
order any person who holds any property which forms part of the property of one
or other of the spouses to
make
such payment or transfer of such property as may be specified in the order;
(b)
confer on any trustees of any property which is the subject of the order such
powers as appear to the appropriate
court
to be necessary or expedient.
(3)
The power of an appropriate court to make an order in terms of paragraph (a)
of subsection (1) shall not extend
to
any assets which are proved, to the satisfaction of the court, to have been
acquired by a spouse, whether
before
or during the marriage—
(a)
by way of an inheritance; or
(b)
in terms of any custom and which, in accordance with such custom, are intended
to be held by the spouse
personally;
or
(c)
in any manner and which have particular sentimental value to the spouse
concerned.
(4)
In making an order in terms of subsection (1) an appropriate court shall have
regard to all the circumstances
of
the case, including the following—
(a)
the income-earning capacity, assets and other financial resources which each
spouse and child has or is
likely
to have in the foreseeable future;
(b)
the financial needs, obligations and responsibilities which each spouse and
child has or is likely to have in
the
foreseeable future;
(c)
the standard of living of the family, including the manner in which any child
was being educated or trained
or
expected to be educated or trained;
(d)
the age and physical and mental condition of each spouse and child;
(e)
the direct or indirect contribution made by each spouse to the family,
including contributions made by
looking
after the home and caring for the family and any other domestic duties;
(f)
the value to either of the spouses or to any child of any benefit, including a
pension or gratuity, which such
spouse
or child will lose as a result of the dissolution of the marriage;
(g)
the duration of the marriage;
and
in so doing the court shall endeavour as far as is reasonable and practicable
and, having regard to their conduct,
is
just to do so, to place the spouses and children in the position they would
have been in had a normal marriage
relationship
continued between the spouses.
(5)
In granting a decree of divorce, judicial separation or nullity of marriage an
appropriate court may, in accordance
with
a written agreement between the parties, make an order with regard to the
matters referred to in paragraphs (a)and (b) of subsection (1).
The bone of contention centred on the bedroom suite,
coffee table and chairs. Plaintiff's evidence was that he purchased all the
movables save for a carpet. On the other hand defendant testified that she also
contributed towards the purchase of sofas. This was after plaintiff defaulted
in paying installments to Pelhams. In
addition she stated that she also purchased the coffee table and chairs albeit
having received some of the money from plaintiff. Although plaintiff disputed
that defendant ever contributed to the purchase of movables it is inconceivable
that defendant never engaged in any income generating activities. This is
especially so when it is not disputed that she embarked on cross-border trading
in order to supplement the family income. In addition it was never challenged
that defendant was once locked out of the matrimonial home for two nights. This
happened after she had returned from selling some wares. Defendant also told the
court that she used the money she earned on clothes for herself and the
children as well as for food. As for the refrigerator plaintiff did not want it
awarded to defendant but preferred that it be awarded to the children. Since I
am going to award custody of the minor child to defendant I will exercise my
discretion and award the refrigerator to defendant as that will in essence
benefit the child as well. Plaintiff has a better earning capacity than
defendant. I will therefore also award the lounge suite to defendant.
As for the immovable house there is no doubt that it
constitutes matrimonial property. It is only that plaintiff has not yet taken
title. However, he paid off the purchase price in 1999. It is not in dispute
that defendant did not make any direct contributions. However, she supplemented
the family income and assisted in the upbringing of the children, let alone
cooking and washing for plaintiff as well up to such time the marriage
relationship deteriorated. Up to the time of trial the parties had been married
for eighteen years, which period must be taken into account in distributing the
matrimonial assets. I will award defendant a share of forty percent of the
matrimonial home having taken into account that it is difficult to quantify the
precise value of her indirect contribution.
The plaintiff has an obligation to provide
accommodation for the minor child. Under cross-examination he stated that he
could provide US$100 for such accommodation. This would be in lieu of
defendant's occupation of the matrimonial house. Plaintiff did not challenge
defendant's testimony that he moved out of the matrimonial house to put up with
one of his mistresses. This means that as between plaintiff and defendant, the
former has ready access to alternative accommodation. It would meet the justice
of the case if the court orders that defendant is to remain in the matrimonial
home until the minor child attains the age of eighteen years. However defendant
will have to forgo part of her share of the house as plaintiff's enjoyment of
his share will be put in abeyance. Since the minor child is now fourteen years
old, it means defendant will live in the house for only four years. I will
therefore take away five percent of her share and give it to plaintiff.
In the result it is ordered that-
(a) A
decree of divorce be and is hereby granted.
(b) Custody
of the minor child Tinashe Talent Nyamayedenga be awarded to defendant with
plaintiff having access during the first two weeks of every school holiday.
(c) Plaintiff
is awarded the following items- bedroom suite, radio with c.d. player, colour
television set, video cassette recorder, coffee table and chairs.
(d) Defendant
is awarded the following items- bed, four plate stove, wardrobe, three piece
wall unit, dining room suite with folding table, sewing machine, all kitchen
utensils and cutlery as well as refrigerator.
(e) Plaintiff
is awarded sixty five percent and defendant is awarded thirty five percent of
the value in respect of house number 143, 16 Honde Close, Nyameni, Marondera.
(f) Upon
the minor child attaining the age of eighteen years the house in paragraph (e)
shall be valued by an evaluator appointed by the Registrar. Thereafter
plaintiff shall have the option to pay to defendant the value of thirty five of
her share failing which the house shall be sold to best advantage on the open
market and the net proceeds shared as in paragraph (e) above.
(g) Each
party shall bear their own costs.
Coghlan, Welsh & Guest,
plaintiff's legal practitioners
Chingore
& Associates,
defendant's legal practitoners
