The background relevant to the determination
of this matter is as follows.
The parties' marriage was solemnised on 21
November 1970 at
Salisbury (now Harare) in terms of the Marriage Act, 1964 (now the Marriage Act
[Chapter 5:11]). For a period of over thirty years, the parties enjoyed a happy
marriage relationship from which union two children were born, Glenn Moroney in
1972 and Toni-Anne Michelle Moroney in 1974. In 2001, irreconcilable
differences developed between the parties leading to a voluntary separation
during the year. On 2 December 2004, the respondent instituted proceedings
against the appellant in the High Court in which he claimed for a decree of
divorce and the division of assets in the manner he considered just and
equitable. In her plea before the High Court, the appellant conceded that the
marriage relationship had irretrievably broken down. She, however, claimed the
division of the assets in the manner she too considered would be just and
equitable. She also claimed periodical payment of maintenance in the sum of
ZW$5,000,000= per month reviewable after every 6 months.
At the end of the trial, the court a quo made an order in
the following terms;
”(a) That a decree of divorce be and is hereby granted.
(b) That compensation for improvements to Riverside Farm
shall be payable to defendant.
(c) That plaintiff be awarded Flat 4 Inverurie Court as his
sole property.
(d) That V & M Fisheries (Pvt) Ltd be wound up with the
proceeds being shared equally between plaintiff and defendant.
(e) The Kipor generator is awarded to Plaintiff.
(f) The parties shall keep the motor vehicles and any other
movables in their respective possessions as their sole property.
(g) The defendant is awarded a fifty per cent share of
Crebilly 'A' Farm.
(h) The plaintiff shall maintain the defendant at his cost
on a suitable medical and dental aid scheme and pay all shortfalls until the
latter dies or remarries.
(i) The amounts in the following bank accounts shall be
shared equally between the parties; Standard Bank, South Africa, ABSA and
Lloyds Bank.
(j) Within three months of the granting of this order
Plaintiff shall pay to the defendant an amount of 10,000= Pounds.
(k) Each party shall bear their own costs.”
The appeal was noted against the orders in paragraphs (c),(f).
(j), and (k).
The question is whether the apportionment achieved the main
purpose of the exercise which was to place the parties in the position they
would have been in had a normal marriage relationship continued.
In arriving at the decision to distribute property between
the parties, the court a quo was required to exercise a broad discretion
conferred upon it by the law. Section 7(1) of the Matrimonial Causes Act [Chapter
5:13] (“the Act”) provides as follows:
“7 Division of
assets and maintenance orders
(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 of 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.”
The order in paragraph (c), awarding the respondent Flat 4,
Inverurie Court as his sole property, was appealed against on the ground that
the court a quo misdirected itself in awarding the flat to him considering that
the appellant has no home of her own to live in since the parties separated.
The award of a 50% share is Crebilly “A” Farm would not provide her with a
suitable home. It was submitted that the court a quo should have awarded the
flat to the appellant thereby placing her, as far as possible, in the position
she would have been in had the marriage continued.
The learned judge a quo also found that the respondent had
a sum of about £61,000= remaining in the Isle of Man account and various other
sums of money in other foreign accounts. Those financial resources, it was
submitted, warranted the making of an order that the respondent procures for
the appellant a house of her own to live.
In Gonye v Gonye 2009 (1) ZLR 232 (S)…, MALABA JA…, said:
“It is important to note that a court has an extremely wide
discretion to exercise regarding the granting of an order for the division,
apportionment of distribution of the assets of the spouses in divorce
proceedings. Section 7(1) of the Act provides that a court may make an order
with regard to the division, apportionment or distribution of 'the assets of
the spouses' including an order than any asset be transferred from one spouse
to the other. The rights claimed by the spouses under s 7(1) of the Act are
dependent upon the exercise by the court of the broad discretion.”
It is trite that an appellate court will not interfere with
the exercise of discretion of a lower court unless there is a clear
misdirection.
In Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S), in
dealing with such discretion, the court stated as follows…,;
“These grounds are firmly entrenched. It is not enough that
the appellate court considers that if it had been in the position of the
primary court it would have taken a different course. It must appear that some
error has been made in exercising the discretion. If the primary court acts on
a wrong principle, if it allows extraneous or irrelevant matter to guide or
affect it, if it mistakes the facts, if it does not take into account some
relevant consideration, then its determination should be reviewed and the
appellate court may exercise its own discretion in substitution, provided
always that it has the materials for so doing.”
In this case, there was a clear misdirection in the
apportionment of assets when regard is had to all the facts.
The Inverurie flat was acquired by the respondent during
the parties' separation from the proceeds of an offshore Standard Chartered
Account he had opened in the Isle of Man.
I accept the contention by counsel for the appellant that
the learned judge having found in his judgment that the appellant required a
home to live in, did not, however, award her such a home. The Crebilly 'A' farm,
in which she was awarded 50% share, would not be appropriate or satisfactory
for her to establish her abode. The appellant had not lived at that farm for
more than a decade prior to the annulment of the parties' marriage. She was
staying with her daughter and son-in-law (Allen Roberts) in Victoria
Falls. Given her old age, it would be
extremely onerous upon her to live on the farm on her own.
It is my view that in the circumstances, the trial court
erred in not awarding the Inverurie flat to the appellant.
I turn, secondly, now to consider the dispute regarding the
movable assets of the parties.
At the pre-trial conference, it was agreed between the
parties that the matrimonial assets would be divided with each party receiving
a 50% share of such property. Paragraph 3.5 of the joint pre-trial minute
states as follows:
“The marital assets are to be shared equally between the
parties.”
The court a quo ordered that each party would retain the
movable property which was already in their possession as at the date of the
judgment. The appellant's contention is that the effect of the order of the
court a quo was that the appellant would keep a vehicle which was more than two
decades old and did not have functional headlights. The respondent, on the
other, was to retain a relatively new Nissan twin cab motor vehicle.
Having found that the Inverurie flat should be awarded to
the appellant, it would, in my view, be fair and equitable for each party to
retain the vehicle awarded to them. The appellant is able to repair the
headlights of her vehicle and enjoy the use of it.
The appellant's claim in this regard is accordingly
disallowed.
I now turn to deal with the third issue, namely, the
Standard Chartered, Isle of Man, account which the respondent opened in 2004.
The respondent submitted in the court a quo that the
Standard Chartered, Isle of Man, account was exclusively acquired by him after
the separation, and was therefore not to be considered part of the matrimonial
estate but his own property.
In Gonye v Gonye 2009 (1) ZLR 232 (S)…, this Court held as
follows:
“The terms used are the 'assets of the spouses' and not 'matrimonial
property.'
It is important to bear in mind the concept used because
the adoption of the concept 'matrimonial property' often leads to the erroneous
view that assets acquired by one spouse before marriage or when the parties are
on separation should be excluded from the division, apportionment of
distribution exercise. The concept 'the
assets of the spouses' is clearly intended to have assets owned by the spouses
individually (his or hers) or jointly (theirs) at the time of the dissolution
of the marriage by the court considered when an order is made with regard to
the division, apportionment or distribution of such assets.”
I respectfully associate myself with that position.
It is common cause that the parties held equal shares in
the company called V & M Fisheries (Pvt) Ltd established in 1978. The
company continued to operate after the parties' separation in 2001. This
company was involved in breeding and rearing of crocodiles as well as the sale
and export of crocodiles as well as skins. It was not in dispute that the
respondent was the person effectively in control of the company. The respondent,
however, failed to account for any profits or dividends of the company since
the parties' separation up to the time of the dissolution of their marriage.
Glen Moroney, the son of the parties, who testified on behalf of the appellant
in the court a quo, stated that the company sold up to 2,000 crocodiles between
the year 2000 and 2004.
The respondent, in his testimony to the court a quo, stated
that he had acquired R1,000,000= as fees for consultancy services subsequent to
separation. He, however, gave no details as to the nature of work he did, the
duration of such work or the details of payments he received in this regard.
In its award, the court a quo did not include the Standard
Chartered, Isle of Man, account. It was the appellant's contention, which
contention I accept, that the respondent failed to truthfully and adequately
explain the circumstances of how the various amounts that the respondent
claimed came from Helena Limited found their way into the Standard Chartered
Isle of Man Account. The court ought to have disbelieved him. From the tenor of
the respondent's testimony, it is quite clear that he was less than candid with
the court in regard to how he amassed his financial resources and the sources
of such funds….,.
The fact that the assets were acquired, or created, during
the period the spouses were on separation does not put them outside the
category of the 'assets of the spouses.' See Gonye v Gonye 2009 (1) ZLR 232 (S)…,.
Counsel for the respondent's submission that the Isle of
Man Account was 'his' asset therefore has no basis at law.
The court ought to have awarded a 50% share of the monies
in the Standard Chartered Isle of Man Account to the appellant. The court a quo
awarded £10,000= to the appellant. The evidence shows that there was much
movement of funds after the separation of the parties and when divorce was
contemplated. The court a quo did not justify either the basis of an award of
£10,000= to the appellant or the exclusion of monies held in the Isle of Man
Account.
There ought to be a rational basis for any award of
property.
In my view, the appellant was entitled to an award of money
that would place her in the position she would have been in had a normal
marriage relationship continued. Such an award should have been a 50% share of
the Standard Chartered Isle of Man Account. The court a quo erred in excluding
from its award the monies held in the Isle of Man Account….,.
In my view, the appellant has established that there exist
grounds upon which this Court should interfere with the exercise of discretion
by the trial court. The appeal must therefore succeed….,.
I accordingly make the following order:-
(1) The appeal is allowed to the extent that paragraphs (c),
(g), (i) and (j) of the order of the High Court, dated 16 June 2010, are set
aside and substituted with the following:-
(c) That the defendant be and is hereby awarded Flat 4
Inverurie Court as her sole property.
(g) That the plaintiff is awarded Credibility 'A' Farm as
his sole property.
(i) The amounts in the following bank accounts shall be
shared equally between the parties, namely Standard Chartered Bank South Africa,
ABSA, Lloyds Bank and Standard Chartered Bank Isle of Man.
(2) For the avoidance of doubt, paragraph (j) of the order
of the court a quo is set aside.
(3) In all other respects, the order of the court a quo
remains in force.
(4) Each party is to pay its own costs.
