CHITAKUNYE J: The
plaintiff and defendant were joined in holy matrimony on 13 June
1997, in terms of the Marriages Act, [Cap
5:11].
The marriage still subsists. They had however commenced living
together as husband and wife in terms of customary law in August
1985. Their marriage was blessed with two children one born on 31
March 1989 and the other born on 17 August 1994.
After several years of apparently happy marriage some unhappy
differences arose culminating in the plaintiff issuing summons for
divorce and other ancillary relief on 6 July 2010. The plaintiff
alleged that the marriage has irretrievably broken down to such an
extent that there are no reasonable prospects of restoration to a
normal marriage relationship. He outlined the grounds for the
breakdown as that:
(a) the defendant has been seeing other men;
(b) the parties are currently on separation; and
(c) consequently the parties have lost love and affection for each
other.
In the circumstances the plaintiff sought a decree of divorce.
During the subsistence of the marriage the parties acquired an
immovable property namely Stand No.7865 Budiriro 5B Harare and
various movable property. The plaintiff offered the defendant a 25%
share in the immovable property with him retaining 75%.
On the movable property he offered most of the property to the
defendant.
He also asked to be given custody of the minor child born on 17
August 1994.
The defendant in her plea denied that she was seeing other men. She
however did not deny that the marriage has irretrievably broken down
as parties have lost love and affection for each other. She made a
counter claim for:
(a) a decree of divorce.
(b) 50% share in the immovable property.
(c) Custody of the minor child born on 17 August 1994.
(d) An order for maintenance in respect of herself in the sum of
USD300 per month.
(e) Sharing of the movable property in terms of her counter proposal
in paragraph 6 of her counter claim.
At a pre-trial conference held on 9 March 2011 the parties agreed
that:
1. The marriage has irretrievably broken down.
2. Custody of the minor child born on 17 August 1994 be given to the
defendant with the plaintiff enjoying reasonable rights of access.
3. The plaintiff pays maintenance in the sum of USD50-00 for the
minor child.
4. The defendant shall get all the movable property except the
following-
(i) Carpet;
(ii) Radio (with amplifier, turner, cassette player and 2 speakers);
(iii) 1 DSTV Decoder;
(iv) DVD;
which shall be retained by the plaintiff as his sole and exclusive
property.
The issues referred to trial pertained to –
1. The fair and equitable distribution of the immovable property,
namely, Stand No.7865 Budiriro 5B Harare;
2. The quantum of maintenance to be paid by the plaintiff to the
defendant for the defendant's upkeep; and
3. Who should pay the costs of suit?
The plaintiff gave evidence and tendered a number of documents in
support of his case. The defendant thereafter gave evidence. From the
evidence of the parties it was common cause that both parties are
domiciled in Zimbabwe. They both appeared to have been born and bred
in Zimbabwe.
They were agreed that their marriage has irretrievably broken down.
Neither party seemed interested in reconciliation.
Whilst the issue as to whether the marriage has irretrievably broken
down is an issue for court, it is my view that as were in this case
both parties appear unwilling to reconcile and no longer have any
love or affection for each other, there is nothing court can do but
to accept that the marriage has indeed irretrievably broken down.
This will thus be my finding in this case.
Another aspect worth mentioning at this stage is that whilst the
issue of costs was referred to trial as contested, there was nothing
from the testimony of the two parties to suggest that this was still
an issue. Neither party asked for their costs to be paid by the other
party. In fact in their respective closing submissions each party
prayed that each party be ordered to bear their own costs.
The only issues for determination were on the division of the
immovable property and maintenance for the defendant.
1. What share should each
party get in respect of the immovable property, being Stand 7865
Budiriro 5B Harare?
The evidence from both parties
shows that the immovable property was bought after about 12 years
from when the parties started living together as husband and wife
under customary law. Incidentally it was the same year their marriage
was solemnized in terms of the Marriages Act, [Cap
5:11].
It is common cause that the property was purchased through a loan
granted to the plaintiff from Tel-one Pension Scheme. All loan
deductions were made from the plaintiff's salary. In as far as
payment of the purchase price is concerned the defendant admitted she
had no direct contribution.
It was also common cause that the plaintiff paid off the loan in
about five years. During that same period he built a pre-cast wall
around the property, opened savings accounts for their two children
with Building Societies into which he made deposits for the future
benefit of the children, he bought a motor vehicle and last, but not
least, he paid for the defendant's college training in dress making
and tailoring.
This tended to confirm the plaintiff's argument that the loan
repayments left him with enough money to comfortably provide for the
needs of the family.
It in a way dealt a severe blow to the defendant's contention that
the loan repayment left the plaintiff with inadequate resources to
provide for the family and so she provided for the shortfall.
Whilst the plaintiff's evidence was consistent with his pleadings,
the defendant found herself having to alter some aspects of her
pleadings in light of what had been accepted as common cause.
For instance whilst in her plea she contended that she engaged in
tailoring and would make clothes for resale in South Africa and
locally and that her income from this venture was used to take care
of all other expenses at home after the monthly deductions on the
plaintiff's salary of the house loan would have rendered his
earnings inadequate to cater for the whole family, when the fact that
the plaintiff actually remained with adequate resources to pay for
other family needs as indicated above, was brought to the fore, the
defendant could not refute that.
When quizzed further on her business of tailoring it became evident
she only qualified as a tailor after the property had been bought.
She further could not with any amount of certainty show that whatever
she was engaged in, albeit disputed by the plaintiff brought any
meaningful income.
Equally in her plea she indicated that one of her sources of income
was selling vegetables she grew at the Stand as the Stand was
spacious. When the reality was placed on the table that the Stand was
not spacious as evident from the plan submitted to court, the
defendant altered her position to now say yes inside the Stand there
may not have been space but she meant that she also utilized space
outside the Stand. Even then she could not show that such a venture
if ever it existed brought in anything of substance.
After a careful analysis of the evidence by the parties I am of the
view that the defendant's financial contribution, if any, was
minimal.
The issue does not however end there.
It is a fact that the two stayed as husband and wife for about 25
years; initially in terms of customary law and thereafter in terms of
the Marriages Act. There is no dispute that as persons sharing same
board and life they provided each other with such necessities of
married life as to make it possible for the plaintiff to acquire
whatever he acquired as husband to the defendant.
Our law recognizes the indirect contribution made by non-working
spouse and other factors in a marriage to an extent were such spouses
now deserve a reasonable share in the property acquired during the
subsistence of the marriage.
Section 7(4) of the Matrimonial
Causes Act, [Cap 5:13],
herein after referred to as the Act, provides that:-
“In making an order in terms of
subs (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 or 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 contributions 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 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 parties.”
The weight to attach to each factor varies from case to case. All the
circumstances of each case must be carefully considered in deciding
on the weight to attach to each relevant factor.
In Sithole
v
Sithole & Anor
HB14/94 court held that even if a wife made only indirect
contributions, she cannot leave empty-handed merely because she did
not contribute financially towards the acquisition and development of
the matrimonial home. The wife in that case was awarded a 40% share.
In Muteke
v
Muteke (S) 88/94 the
wife made no direct financial contribution except as a housewife but
court awarded her a substantial share. The court in that case
considered primarily her needs and expectations rather than her
contributions.
In Usayi
v Usayi
2003 (1) ZLR 684 (S) the Supreme Court in upholding a High Court
decision to award a 50% share to a non-working housewife of many
years held that:-
“It is not possible to quantify
in monetary terms the contribution of a wife and mother who for many
years faithfully performed her duties as a wife, mother, counselor,
domestic worker, house keeper, and day and night nurse for her
husband and children. It is not possible to place a monetary value on
the love, thoughtfulness and attention to detail that she put into
the routine and sometimes boring duties attendant on keeping a
household running smoothly and a husband and children happy; nor can
one measure in monetary terms the creation of a home and an
atmosphere from which both husband and children can function to the
best of their ability. In the light of these many and various duties,
one cannot say, as is often remarked: 'throughout the marriage she
was a housewife. She never worked.' It is precisely because no
monetary value can be placed on the performance of these duties that
the Act speaks of the 'direct and 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.'”
In the Usayi
case the parties had been married for about 35 years.
In casu
the parties were in the marriage for about 25 years. That is
certainly not a short period. During that entire period the defendant
made indirect contribution in all manner. It is unfortunate that
after such a long period the parties have to part ways with
accusations of infidelity being made against the defendant as the
cause for the breakdown of the marriage.
I am of the view that taking into account all the circumstances of
this case an award of a 35% share to the defendant would be just and
equitable.
Quantum of maintenance for Defendant
Section 7(1)(b) of the Act provides that:-
“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 - 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 child of the marriage.”
The defendant claimed a sum of USD300-00 per month till she remarries
or dies which ever is the earlier.
She however did not indicate how she arrived at that figure. In her
evidence in chief and under cross examination she maintained the same
figure albeit without explaining how she arrived at the figure.
All she said was it was because the plaintiff can afford it.
It was only in answer to my specific question that she indicated that
in arriving at USD300-00 she looked at rentals which she will have to
pay, groceries, her health needs, electricity and water.
This was without quantification at all.
It was only in the closing submissions that the defendant's counsel
provided specific sums for each of the items the defendant said she
needed the money for. Unfortunately closing submissions are not the
proper forum to tender new evidence.
It is clear to me that the defendant had just plucked out a sum of
USD300-00 because she believed plaintiff can afford it and not
because it was necessary for her upkeep.
The plaintiff fell into the same pitfall in that in objecting to the
sum of USD300-00. He disclosed his income as USD1,030-00 per month
plus other benefits like a company motor vehicle and school fees
assistance. He however did not go on to show specific expenditure
patterns for him to confirm his inability to pay the sum claimed.
Thus apart from a mortgage deduction of about USD405 per month he did
not provide any other expenditure figures.
It was only in the closing submissions that the plaintiff's counsel
provided further expenditure figures. Unfortunately such evidence
could not be accepted at such a stage.
It is imperative to point out that in claims for maintenance it is
always important for the claimant to lay bear her or his expected
expenditure and the basis thereof. If one's claim is based on the
standard of living they used to enjoy as a couple that must be made
clear by showing that what she/he intends to use the money for and
quantity thereof is what they used to enjoy as a couple; it had thus
become a necessity which she/he should not be deprived now as the
other party can still afford it.
Where the claim is based on new expenditure one has to show that such
expenditure in its nature and quantum is necessary and the other
party can afford to pay for it.
Equally the one defending a claim for maintenance must lay bear his
expenditure pattern in nature and quantum. It is for him to show that
due to such extent of expenditure he cannot afford the sum being
claimed.
It is only when court is seized with such information that it will be
better placed to assess a fair and reasonable quantum of maintenance
to grant the claimant.
Another aspect that was not well attended to is the justification for
post divorce maintenance.
I did not hear the defendant to address her mind in this regard at
all. She seemed to be of the view that she was entitled to be
maintained by plaintiff till she remarries or dies purely because she
had been married to him. Marriage, to her was the meal ticket for the
rest of her life.
Section 8 of the Act provides for the duration of payment of
maintenance as between the spouses in subsection 1(a) as follows -
“An order for the periodic
payment of maintenance in respect of a spouse shall cease -
(a) when the spouse dies or remarries;..”
This section has not been taken as granting a spouse post divorce
maintenance without requiring her/him to justify its need and
duration for such maintenance.
The modern trend in our courts has been to require a spouse to
justify the need for maintenance and the duration for such
maintenance. Whilst remarriage and death will bring any order of
maintenance to an end a spouse is required to show that in the first
place he/she requires to be maintained, for how long and at what sum.
The need to justify post divorce
maintenance was ably put forth in the case of Kangai
v Kangai
HH51-07 wherein at p 5 of the cyclostyled judgment GOWORA J stated
that:
“A woman who has been divorced
is no longer entitled as of right to be maintained by her former
husband until her remarriage or death.
Where the woman is young and had worked before the marriage, and is
thus in a position to support herself, where there are no minor
children, she will not be awarded maintenance.
If she had given up her job to look after the family she will be
awarded maintenance for a short period to allow her time to get back
on her feet.
Where the divorced woman is middle aged she will be given maintenance
for a period long enough to allow her to be trained or retrained.
On the other hand elderly women who cannot be trained or remarried
are entitled to permanent maintenance.”
In stating the above the
honorable judge referred to the case of Chiomba
v Chiomba
1992 (2) ZLR 197 wherein the Supreme Court endorsed the statement
made in Hahlo South African Law of Husband and Wife 5ed at pp 363-4
that:
“It remains to be said that
with the emergence of the 'working wife' and 'woman's
liberation', the attitude of the courts towards the award of
maintenance has been changing the world over. Cases where maintenance
is awarded to the husband, while still rare, are no longer unknown.
The idea that marriage ought to provide the wife with a 'bread
ticket for life' is on its way out.
Not long ago, an 'innocent' wife who obtained a divorce on the
ground of her husband's misconduct could count on being awarded
maintenance until death or remarriage almost as a matter of course.
Today, the courts are no longer prepared to award maintenance to a
young woman who has been working before marriage, and can be expected
to work again after the divorce, at least if there are no young
children of the marriage. At most, if she has given up her job, she
will be awarded a few months' maintenance to tide her over until
she finds a new one.
Middle aged women, who have for years devoted themselves full time to
the management of the household and care of the children of the
marriage, are awarded 'rehabilitative maintenance' for a period
sufficient to enable them to be trained or retrained for a job or
profession.
'Permanent maintenance' is
reserved for the elderly wife who has been married to her husband for
a long time and is too old to earn her own living and unlikely to
remarry.
As MR. JUSTICE MOOREHOUSE remarked in the Canadian case of Knoll
[(1969) 2 QR 580 at 584; 6 DLR (3d) 201 at 205]:
'In this day and age the
doctrine of assumed dependence of a wife is in many instances quite
out of keeping with the times… The marriage certificate is not a
guarantee of maintenance.'
At present, these trends may be more pronounced in Europe and America
than in South Africa, but with the replacement of the 'guilt'
with the 'marriage breakdown' principle they are likely to become
more marked in South Africa, too.”
The above confirms the need to justify post divorce maintenance. It
can longer be granted willy-nilly.
In
casu the defendant is
not in the category of a young woman and neither was it shown that
she is elderly. Evidence adduced shows that she is about 44 years
old, thus middle aged. Whilst she may not have been employed during
the marriage, it was never contended that with the qualifications she
obtained during the subsistence of the marriage she cannot get
employed. All that was contended was that self employment as a tailor
is no longer profitable due to cheap imports.
That in my view is not good enough a reason to burden the plaintiff
with a maintenance order for the rest of the defendant's life or
till she remarries.
The reality of any divorce is that the divorcing parties must adjust
to their new status. This implies that the defendant must put effort
at setting herself up. She cannot sit down expecting her daily bread
from the divorce.
As a middle aged woman who had not been engaged in employment, she
needs a period within which to find her feet. Unfortunately no
evidence or suggestion was made as to how long she would need to set
herself up.
The plaintiff suggested maintenance for a period of about eight
months only.
It is my view that taking into account the period of the marriage and
the fact that the defendant was virtually a full-time house wife she
may need a period longer than eight months to set-up herself. A
period of a year and a half would in my view be adequate in the
circumstances.
Regarding the quantum of maintenance I have already alluded to the
inadequacies in the evidence on both sides justifying the figures
each tendered. It is however clear to me that the defendant needs
basic provisions which a sum of USD50-00 offered by the plaintiff may
not meet. On the other hand USD300-00 per month even for a year and a
half appears too high taking into account the basic expenditure items
the plaintiff alluded to and the loan repayments.
After a careful analysis of the scant evidence adduced I am of the
view that a sum of USD100-00 per month would meet the justice of the
case.
As indicated earlier, a lot of the issues were agreed at the
pre-trial conference and will be incorporated in the final order that
I issue. Accordingly I make the following order:-
It is hereby ordered that:
1. A decree of divorce be and is
hereby granted.
2. Custody of the minor child
namely Tanaka Matongo born on 17 August 1994 be and is hereby awarded
to the defendant.
3. The plaintiff is hereby
granted reasonable rights of access to the minor child upon notice to
the defendant and at such times and during such periods as is
necessary for the plaintiff to enjoy good relations with the minor
child.
4. The plaintiff pays maintenance
in respect of the minor child in the sum of USD50-00 per month until
the minor child attains the age of 18 years or becomes self
supporting whichever is earlier. In addition the plaintiff shall pay
all school fees, buy school uniforms and pay for other related
expenses in respect of the minor child until the child attains the
age of 18 years or becomes self supporting which ever is earlier.
5. All the movable property of
the family be and is hereby awarded to the defendant as her sole and
exclusive property except a Carpet, Radio (with amplifier, turner,
cassette player, 2 speakers) DSTV Decoder and DVD which shall be
retained by plaintiff as his sole and exclusive property.
6. The plaintiff shall pay
maintenance for the defendant in the sum of USD100-00 (one hundred
United States dollars) per month for a period of 18 months reckoned
with effect from 1 February 2012.
7. The plaintiff is hereby
awarded a 65% share of the value of the matrimonial immovable
property being Stand 7865 Budiriro Township, Gleneagles Farm, also
known as Stand No.7865 Budiriro 5B, Harare with the defendant being
awarded a 35% share in the said immovable property.
8. The parties shall agree on the
value of the immovable property within 14 days of this order failing
which they shall appoint a mutually agreed evaluator to evaluate the
property within 30 days of the date of this order.
Should the parties fail to agree on an evaluator within the stated
period subject to any extension the parties may both agree to, the
Registrar of the High Court shall and is hereby directed to appoint
an independent evaluator from his list of evaluators to evaluate the
property.
The plaintiff shall meet the costs of evaluation.
9. The plaintiff is hereby
granted the option to buy off the defendant within six (6) months of
the date of receipt of the evaluation report.
Should the plaintiff fail to pay off the defendant within the
stipulated time, or such other extended time as parties may agree to,
the property shall be sold to best advantage and the net proceeds
shared in the ratio 65:35.
In the case of a sale the parties
shall appoint a mutually agreed selling estate agent failing which
the Registrar of the High Court shall appoint one from his panel of
estate agents.
10. Each party shall bear their own costs of suit.
Maganga & Company, plaintiff's legal practitioners
Pundu & Company, defendant's legal practitioners
