MAKARAU JP: The plaintiff
and the defendant were married in Harare in February 1982. There are
no children to the marriage.
The parties have realized that they no longer have love and affection
for each other and that their relationship has broken down and cannot
be retrieved. They came to this joint conclusion at a pre-trial
conference that was held after the plaintiff had issued summons for
divorce in January 2006.
At the same pre-trial conference, the parties also agreed on how to
share the movable assets of their joint estate in the event that the
court agreed with them that their marriage cannot be salvaged and
granted a divorce in the matter.
The sole issue that remained for determination was how to distribute
the immovable property of the marriage, namely stand 493 Houghton
Park Township.
It was the plaintiff's contentions that she be awarded 50% of the
net proceeds from the sale of the property. On the other hand, the
defendant argued that the immovable property was his sole property
and that it should be declared as such. He further argued that in the
event that the court awarded a share to the plaintiff, the property
should only be sold upon his death as to do so prior would be to
render him homeless.
The facts of this matter regarding the acquisition of the immovable
property are to a large extent common cause.
When the parties married, they were in rented accommodation; they
then secured a vacant stand in or about 1985. At that time he was the
one in gainful employment. She would then use her time to attend to
all those tasks that required someone who had more time on their
hands.
The property was registered in their joint names.
The parties developed the stand to its current state from the
proceeds of a loan secured by a bond over the property which loan he
repaid from his earnings.
In 1997, she became gainfully employed and had the kitchen and the
bathrooms tiled. She also had cupboards installed in the kitchen.
This was from her earnings.
It is further common cause that the parties assisted his family to
put up a residence at a farm that he considers as his family home.
Her parents owned a property in Dube, Soweto, South Africa and upon
their untimely demise, the property either passed onto her, (which
fact she denies) or she has the right to reside in the property.
The plaintiff is in her mid-fifties while he turns sixty-seven next
September. He is on pension from a company that he worked for thirty
four years. He is currently a contract worker with the same employer.
During the trial of the matter, both gave evidence.
As indicated above, their evidence is largely common cause. She
admitted that whilst the property is registered in their joint names,
he developed the stand virtually on his own save for the tiling of
the kitchen and of the bathrooms that she saw to after she obtained
employment in 1995. He admitted that since the property was acquired
during the subsistence of the marriage, she is entitled to a share
but that she should only be able to realize that share upon his
demise. He further testified that the plaintiff is South African by
origin and after divorce, she will return to South Africa where her
family is. She has a son from a previous marriage who at one stage
lived at the family home in Soweto which has been left by her
parents.
Although I found both to be generally good witnesses, it is in my
view pertinent that at this stage I mention that I have accepted the
defendant's contention as more probable that the plaintiff is
unlikely to remain in Zimbabwe after the divorce.
I did not believe her averments that she will stay in the country as
she has developed a clientele for catering service.
With the economic downturn that the country is experiencing resulting
in the shortage of basis commodities, her line of business is not the
most lucrative and would hardly entice her to stay where she has an
option to leave.
I have also based my finding on the admitted fact that she has
already taken to that country some of her clothes. She argues that
these are now a wee bit loose as she has lost weight.
I do not believe her in that regard. She has accommodation in South
Africa even if she may not own that property. She has not sought to
find and establish another home in Zimbabwe for herself even after
filing for divorce. She has sold some of the movable assets that the
parties agreed could be retained by her as her sole and absolute
property.
Two issues fall for determination in this matter:
(i) Firstly, I have to determine
whether from her 50% share in the property, I may deduct any
percentage to award to the defendant in exercising the discretion
vested in me by section 7 of the Matrimonial Causes Act [Cap
5:13], (the Act).
(ii) Having made that
determination, I will have to go further and establish whether there
is any basis upon which I can make any consequential or supplementary
provisions to give effect to the award that I would have determined
under the first issue.
I return to the first issue.
It is common cause that the property in issue is registered in the
parties joint names.
As has been held in the much
cited case of Takafuma
v
Takafuma 1994 (2) ZLR
103 (SC), the plaintiff is a half owner in the immovable property.
Such ownership is not derived from her status as a wife nor does it
arise from the direct contributions that she made towards the
acquisition of the property. She is an owner by virtue of the
registration of her name against the Deed of Transfer in respect of
the property. Her title to the property in this regard holds against
the world at large and to an extent, against her husband unless he
can show recognizing her right in the property will not achieve the
objectives set out in the Act, namely of placing the spouses in the
position they would have been in had a normal marriage relationship
continued, as far as this is reasonable and practicable.
In the result, I will award 50% of the net value of the property to
the plaintiff.
The second issue that falls for determination in this matter has
exercised my mind.
The plaintiff has argued that upon the granting of the divorce, the
property in dispute must be sold and the proceeds shared in terms of
the respective awards.
He in turn has pleaded that he is a pensioner. He has no means to
purchase the plaintiff's one-half share in the property so as to
save the property from being sold immediately upon the granting of
the divorce. He is still employed as a contract worker and cannot
therefore relocate to the farm which he considers his rural home. He
is too old to start his hand at farming. In this regard, he has
further pleaded that I put a condition that the property can only be
sold upon his demise.
The parties' positions above in my view bring into focus the
contrast between the “clean break” concept in divorces and the
objectives of s7 of the Act that imposes a duty upon the court to
view the distribution of the matrimonial assets as if a marriage
between the parties continues.
The plaintiff's stance is clearly a manifestation of the clean
break concept.
She would want to break cleanly from him and realize her share of the
immovable property upon the granting of the divorce and move on with
the remainder of her life.
His is the exact opposite.
He would not want the divorce to unsettle his life save as for that
which cannot be avoided. In this regard he would want to remain in
the property until his death notwithstanding the granting of the
divorce.
In Nyatwa
v
Nene 1990 (1) ZLR 97
(H) EBRAHIM J (as he then was) had occasion to remark on the place of
the clean break concept in our divorce law in the context of the
provisions of the Matrimonial Causes Act. He was of the view that the
statutory objective as set by s7(3) of the Act is foreign to our
legislation and militates against the clean break theory or principle
towards which the entire statute is geared.
The learned judge proceeded to note that our own legislation, the
Matrimonial Causes Act was promulgated very shortly after the repeal
from the English equivalent of a similar provision and our
legislature did not take the opportunity to include the clean break
principle into the legislation.
As stated by the learned judge in the opinion, the clean break
principle as its name implies, envisages a situation where after the
divorce, there are no strings financial or social, tying the parties
one to the other. Each party is given their due from the failed
marriage and is left to pick up their lives and move on.
This, on the face of it, appears to be the desires of most
plaintiffs' and some defendants in divorce actions.
On the other hand, s7(3) of the Act introduces a duty on the court
divorcing the parties to maintain as far as is reasonable and
practicable, the status quo of the lifestyle that the spouses had
during the subsistence of the marriage.
Upholding one obviously frustrates the other.
While our Act was framed on the basis of the South African
equivalent, which in turn was framed after the fashion of the English
one, the Matrimonial Causes Act does not specifically embrace and
provide for the clean break principle. On the contrary, it provides
for the continuance of the marriage as far as is reasonable and
practicable after divorce.
It is on this basis that this court has made orders for custodian
parents to remain in occupation of the matrimonial residence after
divorce and until the youngest child attains majority. It is on the
basis of this that this court has ordered the procurement of new
residences or motor vehicles for divorced spouses to achieve the
objectives of the Act.
On the basis of the foregoing, while the plaintiff is entitled to 50%
of the net proceeds from the sale of the property of the marriage,
she is not as of right entitled to enjoy that award upon the granting
of the divorce. She would only be so entitled if the clean break
principle was a part of our divorce law.
It clearly is not.
As indicated above, I have found on a balance of probabilities that
the plaintiff will return to South Africa upon the granting of the
divorce. I have taken this into account in weighing the equities of
the matter before me.
I have also taken into account on the other hand that he is still
employed although on a contract basis. He is advanced in age and is
unlikely to raise funds that will enable him to pay off the plaintiff
to retain full ownership of the property. From his one-half share he
is unlikely to pay for rented accommodation for any appreciable
period.
His circumstances are in my view such that his need to remain in the
property outweighs her need to realize her one half share of the
property immediately and achieve a clean break from the defendant.
I have taken into account that it may take the plaintiff quite some
time before she can realize her one-half share of the property. This
I have weighed against her minimal cash outlay towards the
acquisition and development of the property during the subsistence of
the marriage.
In my view, the two balance each other evenly.
Thus, where she has gained by contributing less than him in monetary
terms, he will gain by her wait on the terms I shall spell out in the
order.
In making this award, I am guided
by the objective of s7 of the Act of trying as far as reasonable and
practicable to maintain the status quo stante
matrimonii where both
were equal owners of the property. I have attempted to achieve that
equality after divorce.
In the result, I make the following order:
1. A decree of divorce is hereby
granted.
2. Each party shall retain as
their sole and exclusive property the movable assets in their
possession.
3. Each party is awarded 50% of
the net value of Stand 493 Ardbennie Township 3 of Subdivion A of
Ardbennie.
4. The defendant is hereby
granted the right to remain in occupation of the property until he
dies or lives with another person after the manner of husband and
wife whichever occurs sooner.
5. Each party shall bear its own
costs.
Mushonga & Associates, plaintiff's legal practitioners
Coghlan Welsh & Guest, defendant's legal practitioners
