MAVANGIRA
J: The parties in this matter entered into marriage in terms of the then
Marriage Act, [Cap 37] (now Cap 5: 11) on 9 July 1988. Some twenty years later, on 3 December, 2008
the defendant instituted this divorce action, citing various reasons which she
claims indicate that their marriage has irretrievably broken down.
The
parties were blessed with two children, Elena Gloria Koumides born 24 May 1990
and Andreas Wilfred Koumides born 13 March 1995. In addition to the claim for a decree of
divorce the plaintiff also claims custody of the minor child of marriage,
Andreas Wilfred, subject to the defendant's right of access. She also claims maintenance for both the
minor child and the major child, Elena Gloria.
Besides the monthly payments of maintenance for the children, she also
seeks an order that the defendant continues to maintain the children as
dependants on the medical and dental aid policy subscribed for them at his
cost, for the defendant to bear all shortfalls and to reimburse her in respect
of medical and or dental treatment in regard to either or both the
children. She also seeks an order that
defendant, at his cost, subscribe to a foreign medical and dental aid policy
with Mars International or an alternative foreign medical aid provider suitable
to her in respect of her and the children and maintain such policy and bear all
shortfalls arising in regard thereto in respect of the children for as long as
he is obliged to pay maintenance in respect of the said children. She also seeks an order that the defendant
pay all the school fees, costs and charges in regard to the ongoing education
of the children including the cost of school uniforms, sport clothing,
footwear, sports equipment, any extra mural activities and also transportation
arising in respect of school activities.
The
plaintiff also seeks an order that she continues to reside in the matrimonial
home with the children until Andreas attains the age of 18 or becomes
self-supporting, whichever first occurs.
Thereafter the property would be sold and the net proceeds equally
shared. She also seeks an order to the effect that the remaining matrimonial
assets be equally divided between the parties.
When
the matter came up for trial on 19 October, 2009 the parties advised the court
that it was their intention, by consent and in terms of Order 29 Rule 199 to
proceed by way of stated case on the issue of the defendant's liability for the
maintenance of Elena and on the issue of an interdict barring the plaintiff
from cohabiting with a boyfriend in the matrimonial home. They indicated that
they would lead evidence only with regard to the issue of the level of
maintenance for Elena should the defendant be found to be liable and also on
the issue of the level of maintenance for Andreas and on the issue of costs.
The parties then followed the said procedure and on 23 October 2009 they parties filed a “Stated Case In Terms
Of Order 29.” It states:
“WHEREAS: A. The parties are plaintiff and defendant
respectively in
this matter the trial of which
commenced on 19th
October before the Honourable Justice
Mavangira.
B. Two issues for trial as
reflected in the Pre-Trial
Conference minute are:-
1. Whether the plaintiff should be
interdicted
from living
with a boyfriend, now or in the
future.
2.
Whether defendant has a legal obligation to
providing maintenance fro his daughter Elena.
C.
The parties are agreed that both issues are questions
of law,
the facts of
which are not in dispute, and can therefore be determined on a Stated Case.
D.
Accordingly the parties set out the agreed facts in
respect of
the two
issues and will, as expeditiously as possible file Heads of Argument, setting
out the respective parties contentions of law.
The parties respectfully request that the issues be dealt with by the
Honourable Court on the above basis.
NOW THEREFORE THE AGREED FACTS ARE AS FOLLOWS:-
1.
The parties have 2 children born of their marriage,
namely:-
ELENA GLORIA
KOUMIDES (born on 24th May 1990) (“ELENA”)
ANDREAS WILFRED
KOUMIDES (born on 13th March 1995) (“ANDREAS”)
2.
ELENA is at school and will be writing her “A” Level
examinations later this
term.
3.
ELENA lives with her mother the plaintiff in this
matter and with ANDREAS
in the former
marital home being 187 Dublin Road,
Emerald Hill, Harare.
4.
The Emerald Hill home is jointly owned by the parties
in equal shares, and
the parties are
agreed that the plaintiff be entitled to continue to so reside there until such
time as ANDREAS attains the age of 18 years or becomes self-supporting. Thereafter the property will be sold for the
best account and the proceeds divided equally between the parties.
5. Defendant Claims that plaintiff's continued
occupation of the property, up
until its sale, is conditional upon her
refraining, even after the parties divorce, from living on the property with any man
with whom she is romantically
involved.
6.
Plaintiff's
attitude is that she is not presently romantically involved with
anyone and at
present has not the remotest intention of cohabitation in the manner that
defendant wishes to interdict. However, she disputes defendant's legal grounds
for claiming the interdict; opposes the interdict on a question of pure
principal and wishes to have her options freely available in case at some
future date she should meet and fall in love with another man.
7.
ELENA is now and until she completes her tertiary
education, totally
financially
dependant on the plaintiff and defendant for all her living, health,
educational, and extra-mural requirements.
8.
After graduating from school, it is ELENA's desire and
intention to
Undertake
tertiary education in the degree course of Bachelor of Education at the Australian Catholic University,
for which course she will apply next year.
WHEREFORE the parties hereto
do hereby file this Stated Case for the Order of the Honourable Court in
respect of the following questions:-
1.
Whether plaintiff should be interdicted from living in
the matrimonial home with a boyfriend, now or in the future.
2.
Whether defendant has a legal obligation to providing maintenance for
his
Daughter, Elena.”
I shall deal firstly with the issues raised by way of Stated Case, the
first being whether the plaintiff should be interdicted from living in the
matrimonial home with a boyfriend now or in the future.
In his written submissions on this issue the plaintiff's counsel
correctly states that strictly speaking, this demand, coming as it does in a
plea and not a counter-claim, is not before this Court as claims cannot be made
in a plea. He states that the mater was however included as an issue in the
pre-trial conference and was agreed by the parties in a stated case and that
accordingly this Court is requested by the parties to deal with the
matter. I have perused the pleadings in
this matter and ascertained that the matter is not raised in the defendant's
plea. It appears for the first time in
para 8 of the defendant's summary of evidence where it is indicated that the
defendant would request the Court to impose a condition that the plaintiff is
interdicted from bringing her boyfriend to sleep at the house. The defendant
next deals with this matter in closing submissions in response to the
plaintiff's legal argument on it.
There is no prayer before me for such interdict to be granted. Claims are
not made in summaries of evidence or closing submissions. Neither can a claim be made in a plea which
does not incorporate a counterclaim. There is thus no issue before me. The
issue was never pleaded. I do not think
that there is any need for me to make any other pronouncement on this issue in
these circumstances.
The next issue raised in the stated case is whether the defendant has a
legal obligation to provide for his daughter Elena. It is common cause that Elena is a
major. By virtue of that legal status,
Elena can sue and be sued in her own right.
There is no indication as to the legal basis on which or the
justification for the plaintiff making the claim on behalf of Elena. As she is
a major, the claim for maintenance for Elena can only be made by Elena herself.
In his written closing submissions, the defendant's legal practitioner
made reference to HC 4977/09. I have had sight of the file. It is an urgent
chamber application which was filed on 16 October 2009 by Elena and in which
she sought to be joined as second plaintiff in the instant divorce action. A notice of opposition and an opposing
affidavit were filed by the defendant in
casu on the same date. It appears
that no further action was taken in that matter thereafter. Significantly, however, Elena therein states
in her founding affidavit, among other things, that the claim in this divorce
action in respect of maintenance for her is to all intents and purposes
precisely the claim to be made by her against the defendant. She specifically states as follows in para 10
of her founding affidavit:
“I understand and verily believe that, because
I have now attained the age of 18
years, I no longer fall under the
guardianship of my parents, and therefore, in
law, the claim in the divorce proceedings on
my behalf against the first
respondent
is in fact my claim and not the claim of my mother on my behalf.”
I
am for the above reasons in agreement with the defendant's legal practitioner's
submission that the plaintiff's claim on behalf of Elena is bad in law and
should be dismissed. He seeks costs on
an attorney and client scale. I will
deal with the issue of costs later in this judgment.
In
his plea the defendant admitted that the marriage has irretrievably broken down
albeit for different reasons to those cited by the plaintiff. Paragraph 3 of his plea reads as follows:
“Ad paragraph
8-11 thereof
These are
denied, more specifically, (as a matter of law):-
(a)
It is denied that the defendant has any inherent legal
obligation to pay maintenance in
respect of Elena (who has attained the age of majority) unless ordered to do so
by the Court on the basis that same appears just and equitable.
(b)
It is denied that the defendant has legal obligation to
pay maintenance for children beyond the age of majority and/or until they are
self-supporting, unless ordered to do so by the Court on the basis that same is
just and equitable.
It is claimed
that the context of the contribution claimed by the plaintiff from the defendant
is just and equitable.
Defendant
admits that it is just and equitable that both he and the plaintiff contribute
to the maintenance of both the children (including their medical, educational
and general subsistence requirements) to the extent, and for the period,
determined at trial by the Court to be just and equitable, having regard to the
respective means and assets of the plaintiff and defendant (and if necessary
until each child is self-supporting).”
With
regard to the plaintiff's claim that she continues to resided in the
matrimonial home with the children until the younger attains the age of 18
years the defendant avers that it should only be until the younger child
completes his secondary education.
Regarding the plaintiff's claim to be awarded custody of Andreas, his
only request is for a specific access order to be made in his favour.
In
their joint Pre-Trial Conference minute the parties record the agreed issues
for trial as being:
“1. Should
plaintiff be interdicted from having any boyfriend co-habit with her in
the former marital home.
2. Is defendant liable to pay maintenance for
Elena?
3. If so, what is the proper level of
maintenance contribution in respect of Elena?
4. What is the proper level of maintenance
for Andreas?
5.
Liability for legal costs. ”
The
Pre-Trial Conference minute also records certain admissions as having been
made. It is not intended to repeat these
at this stage. It also records that the
plaintiff gave notice of the intention to apply for Joinder of Elena Koumides,
the elder child, who, it is stated, recently became a major, as co-plaintiff.
In
view of my finding on the issues raised in the parties Stated Case the only
outstanding issue for the determination of this Court is thus the quantum of maintenance for the minor
child. In her summons and Declaration
the plaintiff's prayer is for US$1 250 per month per child. In her evidence she
stated that she now seeks a monthly contribution of US$800 per month per child.
The minor child was at the time of the trial in Form 2. The plaintiff's
evidence that her monthly expenditure averages US$2 200 was not challenged. She
said that this amount does not cover the insurance on the house or charges for
the licensing of vehicles. She said that the defendant can well afford to pay
US$800 per month for the child as he runs a company which they set up together
and which does installation of security alarm systems, camera surveillance
equipment, water filters and medical and dental equipment. He has a contract
with a large foreign embassy to maintain all the staff houses. He also does
work for a major wholesale group.
The defendant on the other hand, said that
business was not doing very well and he was only realising about US$250 net per
week. Initially he said that he was in such dire straits that he could not
afford to pay maintenance for the minor child and that he was going to approach
the magistrates' court for the plaintiff to be ordered to pay maintenance to
him. Thereafter, after being taken through the documents that he produced to
show his business income and expenditure performance during cross examination,
he then shifted his stance and said that he could afford to contribute about
US$100 per month towards the minor child's maintenance. This is in addition to
the payments for school fees, uniforms, medical aid, pocket money, extra-mural
activities, electricity, water, telephone and rate bills. The defendant only
made available the profit and loss account documents referred to above after an
adjournment was sought by the plaintiff's legal practitioner for that purpose.
The
defendant also said that the plaintiff is in a better financial position than
himself as she has an inheritance of more than 150 000 Australian Dollars in
cash. He also said that the two of them have a joint account in Cyprus
which has in excess of US$100 000, which amount they will share equally. He
thinks that after deducting his current liabilities he will be left with a net
of US$6 000 and it is from this amount that he will be able to pay US$100 per
month as maintenance for the minor child.
The
defendant whilst being cross examined agreed that he had paid the following
amounts to the plaintiff as maintenance during the period since he moved out of
the marital home; US$545 on 4 March, US$791 on 1 April, US$789.50 on 2 June,
US$200 on 12 June, US$680 on 2 July, US$200 on 10 July, US$100 on 15 July and
US$500 on 7 August. He agreed that all these amounts were in excess US$250 per
month but explained that all these were borrowings from his family, mainly his
elder brother. He was however unable to say how much he owes his elder brother.
He said that he will pay his brother back when he requests him to do so and
that he will repay him using his share of the money from the account in Cyprus.
He was then asked:
“So you are
quite clearly able to pay more maintenance than what you are offering?”
He answered:
“From the monies
in Cyprus
yes, and half of that is my wife's and notwithstanding the in excess of 150 000
Australian Dollars my wife has.”
It was also during cross examination
that the defendant agreed that besides the amounts that he had been paying to
his family, he had also been spending considerable amounts of money on his
family; he agreed that in November 2008 he bought the minor child a motor bike.
He said that he paid US$500 for it. In December he bought a motor vehicle for
Elena. He said that it was paid for from the Cyprus account and it cost US$6
500. This was at the plaintiff's request after both the plaintiff and he had
promised to buy Elena a car. He agreed that in January he took both children to
Durban for
twenty days and he bought them clothes, cell phones and a spear gun. In March
he bought the minor child another motor bike for US$1 300. He took the minor
child on holiday in Kariba from 19 to 23 June. He said that the rugby boots
that he gave to the minor child in April were a gift to him from a friend. He
then also said that the holiday in South Africa was paid for by his
elder brother. His elder brother also lent him money for the motor bike for the
minor child. He also funded the trip to Kariba and gave them his car to use.
I am in agreement with the
plaintiff's legal practitioner's submission that in determining the defendant's
ability to pay the only question is his credibility. Can he be believed when he
says that he is unable to pay US$800 per month for the maintenance of the minor
child? The defendant was very reluctant to tell the court how much he was
earning per month saying that it was difficult to calculate. But, as submitted
by the plaintiff's legal practitioner, how can a tradesman not be able to
calculate what he earns per month? He does the work, renders an invoice and
receives payment. What can possibly be complicated about that? It was also
quite startling that despite the defendant's evidence that he borrowed from his
brother on a monthly basis, he was unable to say how much he had borrowed. He
gave the impression of one who has decided not to be candid with the court. It
was also apparent that there is great animosity between the parties and
unfortunately that animosity had clearly also transferred onto both legal
practitioners who constantly “fought” during the trial. At one stage early in
the trial I had to call them to chambers because of their unbecoming conduct
and remonstrate with them.
The defendant's claim that he is
unable to contribute more than US$100 is not supported by the evidence and by
the probabilities especially when one has regard to his demeanour and to the
lack of cohesion of his story and his explanations. The plaintiff's legal
practitioner aptly cited Lindsay v
Lindsay 1993 (1) ZLR 195 at 197E – F where KORSAH JA stated:
“I entertain no
doubt that the quantum of
maintenance, pendente lite or
otherwise, which a court may order a husband to pay to a wife without means is
at the discretion of the court. In order to ensure the proper exercise of that
discretion, the court requires that every party to an application for
maintenance shall deal with the court with candour and utmost good faith. Each
party must disclose to the court every material fact, whether for or against
him or her, which will enable the court to make a fair and just assessment.”
In casu, the defendant was very reluctant
to have the court know his true financial position. Rather, he sought to create
the impression that he is almost impecunious and intends for that reason to sue
the plaintiff for his own maintenance. It was only during cross examination
that it then turned out that he is in fact not impecunious. He does appear
however to resent paying maintenance for the child because of the acrimonious
relationship currently prevailing between him on the one hand and the plaintiff
and the children on the other. His financial position appears to be quite
healthy judging by the amounts of money that he has paid to the plaintiff and
also by the amounts of money that he has spent on the children as already
recorded above. His explanation that the monies were all borrowed from his
elder brother is not worthy of any belief. Despite indications made to him
during cross examination by the plaintiff's legal practitioner, he did not see
it fit to call his elder brother to confirm his story. I disbelieve him.
The joint account in Cyprus
is not the defendant's only source of money. The defendant is in business. The
defendant was able to pay and or spend the amounts referred to above in
addition to his payment of the expenses relating to the minor child's education
and utility bills. It would appear to me that whilst he continues to meet the
said costs the defendant would also be able to contribute an amount of US$500
per month towards the minor child's maintenance. The order that this court will
make will take into account the fact that the parties have agreed that the
plaintiff and the minor child will continue to enjoy living in the matrimonial
home until the minor child attains the age of 18 years or becomes self
supporting whichever last occurs. Furthermore that they also agreed that all
household furniture and contents in the marital estate shall remain in the
matrimonial home until the house is sold, the proceeds to be divided equally
between the parties.
With
regards to costs, as stated by KORSAH JA in Lindsay
v Lindsay (supra), at 203B, “it is unusual to deprive a successful party of
her costs.” Despite the dismissal of the plaintiff's claim for maintenance on
behalf of Elena, the plaintiff has in my view, generally succeeded and is
entitled to her costs.
In the result it is ordered as
follows:
1.
That a decree of divorce shall issue.
2.
That custody of the minor child A be and is hereby
awarded to the plaintiff with the defendant having reasonable access to him.
3.
That the defendant shall be entitled to have access to
the minor child as set out below:
(a) every
alternate weekend from close of school on Friday afternoon until
he returns the minor child to school on
Monday morning; and
(b) every
alternate public holiday, half of every school holiday and
alternate Christmas periods
4.
That the
defendant shall contribute to the maintenance of the minor child A:
(a)
by paying to the plaintiff the sum of US$500 for A, the
first such payment for the month of June 2010 to be made forthwith and
subsequent payments to be made on the first day of each succeeding month until
the child attains the age of 18 years or becomes self supporting whichever last
occurs; and
(b)
by maintaining the minor child A as a dependant on a
medical and dental aid policy and bearing all shortfalls and shall reimburse
plaintiff in respect of any monies paid by her for the medical or dental
treatment of the minor child; and
(c)
by paying all school fees, including tertiary
education, and any costs and charges in regard to the education of the minor
child including the cost of school uniforms, sport clothing and equipment,
footwear and any extra mural activities as well as the cost of all
transportation arising in respect of school activities up to tertiary education.
5.
That the plaintiff shall reside in the matrimonial home
with the minor child until such
time as the minor child attains the age of 18 years or becomes self supporting,
whichever last occurs.
6.
That at the expiry of the period referred to in para 5
above the matrimonial home which is equally co-owned by the parties, shall be
sold and the net proceeds shall be equally divided between the parties subject
to the following:
(a)
if the parties cannot within 30 days of the minor child
attaining the age of 18 years or becoming self supporting whichever last
occurs, agree on a valuator, the Registrar shall at the request of either party
appoint a valuator from his Panel of Valuators within 30 days of such request;
(b)
the valuator shall as soon as possible value the
property and if there are any outstanding obligations, shall indicate the net
value thereof;
(c)
the costs of valuation shall be paid by both parties in
equal shares;
(d)
The plaintiff shall, within 6 months of the date of the
valuation referred to in subpara (b) above pay to the defendant 50% of the net
value of the property as determined in terms of subpara (b) above.
(e)
If the plaintiff fails to comply with subpara (d) above
then the defendant is given the option to pay to the plaintiff 50% of the net
value of the property within 6 months thereafter.
(f)
In the event
that neither party is able to pay out the other in terms of subpara(s) (d) and
(e) above, then the property shall be sold to best advantage by an independent
estate agent appointed by the Registrar from the Registrar's Panel of Estate
Agents and the net proceeds shared equally between the parties.
7.
That all household furniture and contents in the
matrimonial estate shall remain in the matrimonial home until the house is sold
in terms of para 6 above when the furniture and contents will then be equally
divided between the parties as agreed at the pre-trial conference.
8.
That the defendant shall pay costs of suit.
Atherstone & Cook, plaintiff's legal practitioners
Venturas &
Samukange, defendant's legal practitioners
