CHITAKUNYE J: In 1989 the
plaintiff and defendant married each other in terms of customary law.
Their marriage was however not registered. After a period of about
ten years living together in the manner of husband and wife they
decided to have their marriage solemnized in terms of the Marriages
Act [Cap 5:11]
of the Laws of Zimbabwe. Their marriage was thus solemnized on 11
February 1999 at Harare in terms of the Marriages Act. That marriage
still subsists.
Their marriage was blessed with
two children who were born in 1991 and 1998 respectively.
After a period of about ten years
from the year their marriage was solemnized, some unhappy differences
between the parties became unbearable and the
plaintiff opted to seek a decree of divorce. On 9 April 2010, the
plaintiff sued the defendant for a decree of divorce and other
ancillary relief.
The plaintiff alleged that the
marriage relationship has irretrievably broken down to an extent that
it cannot be restored to a normal marriage relationship for the
following reasons:
(1) The defendant is verbally
abusive towards the plaintiff and generally disrespectful;
(2) The defendant is not
financially responsible;
(3) The defendant has lost all
love and affection for the plaintiff; and
(4) The defendant has a child
born to an adulterous relationship with another woman.
As a consequence of this the
plaintiff believed the marriage has irretrievably broken down. She
therefore sought a decree of divorce.
During the subsistence of the
marriage the parties acquired movable property of which she sought to
be awarded most of that property.
She also sought an order awarding
her custody of the minor child with the defendant being ordered to
pay monthly maintenance for the upkeep of that child.
She further sought an order for
costs.
The defendant in his plea denied
being abusive and financially irresponsible. He however did not deny
that he fathered a child as a result of an adulterous relationship he
had with another woman. He equally did not deny that the marriage has
irretrievably broken down.
The defendant raised a claim in
reconvention.
In his claim he sought an order
distributing the movable property according to his own schedule. He
alleged that parties also acquired an immovable property, namely
Stand No. 458 Glen Norah A, Harare. He thus sought an order awarding
him that immovable property.
The plaintiff's plea to the
defendant's claim for the immovable property was to the effect that
that immovable property was bought by the plaintiff alone and not by
the parties. It should therefore be awarded to the plaintiff.
At a pre-trial conference most of
the issues were settled. The parties agreed that:
(1) The marriage between them has
irretrievably broken down and so a decree of divorce should be
granted;
(2) Custody of the minor child
Charmaine Tadiwanashe Sande (born 30 January 1998) be awarded to the
plaintiff with the defendant exercising reasonable rights of access.
(3) The defendant pays
maintenance for the minor child at the rate of USD50-00 per month and
that he buys a set of school uniform for the child twice a year;
(4) The defendant shall
contribute towards the adult child's University education;
(5) The manner of sharing of all
the movable property.
The issues referred for trial
comprised:
(1) Whether or not the defendant
is entitled to claim a share in the immovable property known as Stand
458 Glen Norah Township of Glen Norah, Harare.
(2) If the defendant is entitled
to a share in the said immovable property, what share is he entitled
to?
(3) Whether or not there should
be an award of costs against the defendant.
The plaintiff gave evidence and
tendered a number of documentary exhibits in support of her case. The
defendant thereafter gave evidence contending that he is entitled to
a 60% share of the immovable property.
In terms of section 5 of the
Matrimonial Causes Act, [Cap
5:13],
before granting a decree of divorce court must be satisfied that the
marriage relationship has indeed irretrievably broken down.
In the instant case, the
plaintiff's evidence was to the effect that the marriage has
irretrievably broken down with no prospect of restoration to a normal
marriage relationship. In this regard she alluded to the fact that
parties have lost all love and affection for each other. Though still
staying at the same house parties have not shared conjugal rights for
a period of about six years and neither party intends to resume
cohabitation. She also testified that the defendant committed
adultery with one of their domestic maids as a result of which a
child was born from that illicit affair. This is a fact she is unable
to live with.
These factors were not disputed
by the defendant. If anything he seemed to confirm the loss of love
and affection between the parties and the fact that he committed
adultery with one of their domestic maids. The aspect he contested
was one of financial irresponsibility. Though the defendant denied
being abusive he did not deny that the manner in which they related
to each other led to the plaintiff obtaining a peace order against
him at the Magistrate's Court. Such is not normal in a normal
marriage relationship.
I am of the view that all this
confirms that the marriage has indeed irretrievably broken down.
In Kumirai
v
Kumirai 2006 (1) ZLR
134 (H) at p136 B-D MAKARAU
J (as
she then was) stated that:
“In view of the fact that the
breakdown of a marriage irretrievably, is objectively assessed by the
court, invariably, where the plaintiff insists on the day of trial
that he or she is no longer desirous of continuing in the
relationship, the court cannot order the parties to remain married
even if the defendant still holds some affection for the plaintiff.
Evidence by the plaintiff that he or she no longer wishes to be bound
by the marriage oath, having lost all love and affection for the
defendant, has been accepted by this court as evidence of breakdown
of the relationship since the promulgation of the Matrimonial Causes
Act in 1985.”
In casu,
both parties confirmed they no longer love each other and that,
though still living under the same roof, they have not been living in
the manner of husband and wife for the past six years. In the
circumstances court cannot deny them the prayer for a decree of
divorce.
The contentious issue pertains to
the immovable property, namely Stand number 458 Glen Norah A, Harare.
From the evidence adduced in
court it was common cause that the parties' first immovable
property was a residential Stand in Ruwa. That Stand was bought after
the defendant obtained a loan from his employer. Though parties are
not agreed as to the eventual contribution of each one, they are,
however, agreed that the Stand was registered in their joint names
and that both of them directly contributed to its purchase price.
This Stand was sold after the purchase of Stand 458 Glen Norah A (the
immovable property in question.)
The immovable property in
question was acquired in 1999 whilst the Ruwa Stand was sold, at the
earliest in 2000, as that is the year the defendant's loan towards
that Stand was paid off. The parties are however not in agreement on
the manner in which the proceeds from the sale of the Ruwa Stand were
utilized.
The defendant contended that part
of the proceeds went towards clearing the balance of the plaintiff's
loan for the purchase of the Glen Norah house, partly towards the
purchase of a pick-up truck and the balance towards improvements to
the Glen Norah house.
The plaintiff denied that any of
the proceeds went towards the Glen Norah house. She maintained that
the defendant used all the proceeds, including her 50% share, towards
the purchase and repairs to a pick-up truck the defendant stubbornly
bought.
The plaintiff argued that she
should be awarded the immovable property because she is the one who
bought it and she will be the one staying with the children.
She tendered documents showing
that she applied for a mortgage loan from her then employer Standard
Chartered Bank. She was granted the loan in the total sum of
$455,000-00 to enable her to buy Stand number 458 Glen Norah A,
Harare. This amount comprised the full purchase price of $435,000-00
and transfer fees. The loan was to be repaid through deductions from
her salary over a period of 300 months. She repaid the loan in about
five years due to additional income she got from her employment such
as staff bonus and profit sharing scheme that her employer devised
for its employees. She argued that during the period of loan
repayment the defendant did not assist her at all. The defendant had
in fact been against the idea of the plaintiff purchasing the house.
The plaintiff categorically refuted defendant's contention that
proceeds from the sale of the Ruwa stand were used to pay off her
loan.
The plaintiff also tendered the
agreement of sale and the Deed of Transfer both showing that they
were in her name as the purchaser and owner.
The defendant's evidence was to
the effect that he contributed about 80% of the purchase price for
the Ruwa Stand whilst the plaintiff contributed about 20%. For the
Glen Norah house the plaintiff's contribution was about 20% by way
of loan from her employer and the balance of the purchase price was
from proceeds of sale of the Ruwa Stand. He contended that his
contribution in the Glen Norah house must be assessed on the basis of
his greater contribution in purchasing the Ruwa Stand which in turn
was a greater contribution towards clearing the plaintiff's loan.
In the circumstances he believed he deserved a 60% share in the Glen
Norah house.
The defendant did not however
have any documentary proof of his assertions. The defendant's
excuse for lack of such proof was that the plaintiff had destroyed
all the documents to do with the Ruwa Stand. At the end it became a
question of his word against the plaintiff's word as supported by
her documents.
The defendant's position is not
supported by certain contradictions and inconsistencies within his
evidence. For instance whilst documentary evidence shows that the
plaintiff obtained a loan covering the total purchase price including
transfer costs, at some stage the defendant gave the impression that
the loan was inadequate to pay the full purchase price. When this was
shown to him he seemed to retract and to now contend that it is the
loan that was cleared by proceeds from the Ruwa Stand. This is
epitomized in para 10 of his Summary of Evidence wherein he stated
that –
“The defendant will tell the
court that all in all the house costed (sic)
about ZW$475,000-00 and the plaintiff only contributed about
ZW50,000-00 which she got from her workplace.”
According to para 8 of that same
Summary of Evidence he said:
“However, before the Ruwa Stand
was sold, the parties agreed that the plaintiff would acquire a loan
from her work place in order to raise a deposit for the Glen Norah
Stand. The plaintiff obtained the loan from Standard Chartered Bank
where she was working.”
The inescapable conclusion one
gets is that the loan applied for and obtained by the plaintiff was
for the deposit hence it was only ZW$50,000-00 against a purchase
price of ZW$475,000-00.
The evidence tendered by the
plaintiff showed that the loan was for ZW$455,000-00 to cover the
entire purchase price of ZW$435,000-00 and transfer costs.
The Agreement of Sale, which the
defendant confirmed he signed as a witness, has a special clause that
the sale was conditional upon the purchaser, who in this case is
indicated as the plaintiff, being able to secure a loan of
ZW$435,000-00 from Standard Chartered Bank.
No where in that agreement is it
stated the plaintiff was to secure only a deposit. Clearly the
defendant was not being truthful.
I am of the view that Stand 348
Glen Norah A was paid for in full by the loan obtained by the
plaintiff from her then employer.
What the plaintiff was saddled
with was the loan repayment. The evidence showed that loan deductions
were in fact being made from her salary.
The plaintiff's evidence that
she paid off the loan within five years as she earned annual bonuses
and got some dividends from the employer's profit sharing scheme
was more credible than the defendant's assertion that he paid off
the loan using the proceeds from the Ruwa Stand.
The question to be asked is
whether the fact that the plaintiff paid the purchase price in full
without the defendant's significant direct contribution means that
the defendant is not entitled to a share in the property?
The answer appears to be a
straight NO.
A spouse's entitlement to a
share in an asset acquired by one or both spouses is not dependant on
their direct contribution towards the purchase of that asset. Whilst
direct contribution must be considered, it is not the only
consideration.
Section 7(1)(a) of the
Matrimonial Causes Act (supra)
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 division, apportionment or distribution of
the assets of the spouses, including an order that any asset be
transferred from one spouse to the other.”
The only assets of the spouses
excluded from the application of the above section are stated in subs
(3) as:-
“.. 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 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.”
Any assets of either or both
spouses which does not fall within the ambit of the exception must be
considered in the division, apportionment and distribution of the
assets as between the spouses.
A guideline to the consideration
of the division, apportionment and distribution of the assets is
provided for in section 7(4). That subsection states 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 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.”
It is clear from the above that
the fact of a spouse having bought an asset single handedly is just
one of the numerous considerations to be had.
Even where an asset is registered in the name of one spouse as his or
her asset, section 7(1)(a) provides that the court may make an order
transferring that asset to the other spouse.
In Kassim
v
Kassim 1989 (3) ZLR
234 at p238B-C GIBSON J reaffirmed this when she said that:
“I agree that, by virtue of the
provisions of section 7 of the Matrimonial Causes Act No. 37 of 1985,
the court has power to order a division of the property,
notwithstanding the strict legal title of the parties, in order to
achieve a just settlement between them.”
In Takafuma
v
Takafuma 1994 (2) ZLR
103 (S) at p106B-D McNALLY JA had this to say on how to approach the
division, apportionment, and distribution of assets in terms of
section 7;
“The duty of a court in terms
of section 7 of the Matrimonial Causes Act involves the exercise of a
considerable discretion, but it is a discretion which must be
exercised judicially.
The court does not lump all the
property together and then hand it out in as fair a way as possible.
It must begin, I would suggest, by sorting out the property into
three lots, which I will term 'his', 'hers', and 'theirs'.
Then it will concentrate on the third lot marked 'theirs'. It
will apportion this lot using the criteria set out in section 7(3)
{now 7(4)} of the Act. Then it will allocate to the husband the items
marked 'his' plus the appropriate share of the items marked
'theirs'. And the same to the wife.
That is the first stage.
Next it will look at the overall
result, again applying the criteria set out in section 7(3) and
consider whether the objective has been achieved, namely, 'as far
as is reasonable and practicable and, having regard to their conduct,
is just to do so, to place the spouses … in the position they would
have been in had a normal marriage relationship continued…'”
The above cases clearly confirm
that the fact that property is registered or is deemed to be a
spouse's asset is only the starting point. Court in the exercise of
its wide discretion has the power to transfer an asset owned by one
spouse to the other in order to achieve the objective set out in
section 7 of the Act.
In casu
the parties agreed on the distribution of the movable assets. Each
one got a share to their satisfaction.
The immovable asset is registered
in the plaintiff's name.
My finding from the evidence
adduced is that it is probable that the plaintiff paid the purchase
price. The defendant may only have made superficial contribution in
this regard. This property can safely be placed in the category of
the plaintiff's asset.
It is however my view that
awarding the property to the plaintiff as her sole and exclusive
property and denying the defendant any share thereof would not meet
the objective of “as far as is reasonable and practicable and,
having regard to their conduct, is just to do so, to place the
spouses... in the position they would have been in had a normal
marriage relationship continued between the spouses.”
The circumstances of the case
show that the defendant deserves a share in the property. The parties
lived together in the manner of husband and wife for over twenty
years. In that period they were blessed with two children. They
brought up the children as a family. In the first ten years of
marriage they acquired a residential Stand as a couple. That was made
possible by the defendant obtaining a loan from his employer. Though
their union was not yet solemnized they registered that property in
their joint names, again confirming they were in it together. After
the solemnization of their marriage another property was acquired
this time through the plaintiff's employer. The property was
registered in the plaintiff's name. The property acquired earlier
was sold and proceeds shared equally, though the plaintiff said she
later gave her share to the defendant.
The parties considered the
property in question as their matrimonial property and have lived
there since its acquisition. During this period the defendant played
his part as husband and father to the family. He was not just seated
but was employed. When he was no longer employed he engaged in income
generating activities such as the tuck shop for which he said he had
bought the pick-up truck to service. These are but some or the
circumstances that show the need to award the defendant a share in
the property.
The issue of what percentage
share to award is not an easy one.
The defendant's evidence was
unfortunately fraught with inaccuracies and inconsistencies regarding
his contributions. It is my view that the evidence adduced does not
warrant a 60% share at all.
The defendant's conduct was to
a great extent the cause of the breakdown of the marriage. He must
not be seen to be benefiting from such conduct lest a wrong signal be
sent that you can be as belligerent as you want and still profit from
it by a substantial award in the assets of the spouses.
After a careful analysis of the
circumstances of the case, the manner in which the parties lived as a
family for the twenty years and the fact that there is only one
immovable property, the plaintiff as custodian parent will need
accommodation for herself and the children. I am of the view that an
award of 25% to the defendant would meet the justice of the case. The
plaintiff will be given the option to buy out the defendant.
The plaintiff's claim for costs
of suit was not well argued.
The parties having settled all
the issues, the defendant's claim for a share in the immovable
property was reasonable as evident from the award. The question of
his conduct having led to the plaintiff seeking divorce has already
been taken account of in the ratio of sharing the property. It may
not be appropriate to use the same conduct for costs against him as
if his claim for a share was without basis.
Accordingly it is hereby ordered
that -
(1) A decree of divorce be and is
hereby granted.
(2) Custody of the minor child
namely, Charmaine Tadiwanashe Sande, (born 30 January 1998) be and is
hereby awarded to the plaintiff. The defendant shall have reasonable
rights of access to the minor child at his expense in the following
manner -
2.1 one week (7 days) every
school holiday;
2.2 as and when the minor child
requests to see him; and
2.3 on special occasions upon
prior arrangement with the plaintiff.
(3) The defendant shall pay
maintenance in respect of the minor child in the sum of USD50-00 per
month until the child attains the age of 18 years or become self
supporting whichever shall occur first.
(4) The defendant shall pay a sum
of USD40-00 per term towards the minor child's school fees.
(5) The defendant shall buy one
set of school uniforms for the minor child twice a year.
(6) The defendant shall pay half
of Melissa Tapiwa Sande's University fees as charged by Midlands
State University where she is enrolled.
(7) That the parties' movable
property be and is hereby shared as follows -
For the plaintiff
(i) One 21 inch Phillips
television set;
(ii) One DSTV decoder and
satellite dish;
(iii) One video cassette
recorder;
(iv) One stove;
(v) Two double beds;
(vi) One wardrobe;
(vii) One lounge suite.
For the defendant
(i) One queen size bed;
(ii) One refrigerator;
(iii) One dining room suite;
(iv) One wardrobe.
The room divider that was owned
by the parties shall be sold and the proceeds thereof shall be shared
equally by the plaintiff and defendant.
(8) On
the immovable property
(a) The plaintiff be and is
hereby awarded a 75% share in the immovable property known as Stand
number 458 Glen Norah Township of Glen Norah, Harare also known as
Stand 458 Glen Norah A, Harare.
(b) The defendant be and is
hereby awarded a 25% share in the said immovable property.
(c) The parties shall agree on
the value of the property within 14 days from the date of this order
failing which they shall, within 30 days, appoint a mutually agreed
evaluator to evaluate the property.
(d) Should the parties fail to
agree on an evaluator the Registrar of the High Court shall be and is
hereby directed to appoint one from his list of evaluators to
evaluate the property.
(e) The parties shall share the
cost of evaluation in the ratio 75:25 (as per their shares).
(f) The plaintiff shall pay off
the defendant his share within six months from the date of receipt of
the evaluation report unless the parties agree on a longer period.
(g) Should the plaintiff fail to
pay off the defendant in full or make a payment plan acceptable to
the defendant within the period stipulated (in f) above, or a longer
period as agreed by the parties, the property shall be sold to best
advantage by a mutually agreed estate agent or one appointed by the
Registrar of the High Court, if the parties cannot agree on one, and
the net proceeds thereof shall be shared as per their respective
shares in the property.
(h) Each party shall pay their
own costs of suit.
Mawere & Sibanda, plaintiff's legal practitioners
Nyikadzino, Koworera & Associates, defendant's legal
practitioners
