CHITAKUNYE
J: On 29 April 1995 the plaintiff and
defendant were joined in holy matrimony by a minister of religion in terms of
the Marriages Act Chapter 5:11. That
must have been a joyous occasion, not only to the two but to their respective
families and friends. Sadly 14 years down the line the couple no longer wishes
to continue as husband and wife. Whatever happened to their vows to live
together 'till death do us part' is only known by the two of them.
During
the 14 years of marriage no child was born of the marriage.
At the time of the
marriage they lived in a single room as tenants/lodgers. Soon after marriage
they moved to now rent two rooms. In the year 2001 they eventually acquired an
immovable property namely stand number 10771 Kuwadzana Extension Harare. That
property was registered in the plaintiff's name. Thus from being lodgers they
were now proud owners of an immovable property. In that same period they also
acquired movable property.
Unfortunately
in that same period differences began to emerge leading to this divorce action.
On
21 May 2008, the plaintiff sued the defendant for a decree of divorce on the
ground that their marriage had irretrievably broken down to such an extent that
there are no prospects of reconciliation. He alleged that:-
(1) The
parties have lost all love and affection towards each other and;
(2) The parties have become uncommunicative
towards each other and are invincibly incompatible.
The
defendant in her plea thereto agreed that the marriage has indeed irretrievably
broken down.
As there are no children the contentious issue
pertained to the distribution of the matrimonial estate they acquired during
the subsistence of the marriage. At the pre-trial conference counsel for both
parties indicated that the issue of movable property had been resolved and so
was no longer an issue before this court.
At
the same conference the defendant withdrew her claim for spousal maintenance.
The only issue referred for trial pertained to the equitable distribution of
the immovable property, which is the parties' matrimonial home.
Section 5 of the Matrimonial Causes Act; Chapter 5:13 herein after referred to as
the Act, states that:
“(1) an appropriate
court may grant a decree of divorce on the grounds of irretrievable break-down
of the marriage if it is satisfied that the marriage relationship between the
parties has broken down to such an extent that there is no reasonable prospect
of the restoration of a normal marriage relationship between them.”
Section
5 (2) provides some of the circumstances court may consider in determining
whether the marriage has irretrievably broken-down.
The
plaintiff gave evidence to the effect that they married here in Zimbabwe. He
has lived in Zimbabwe all
his life and he is thus domiciled in Zimbabwe. On that basis this court
has jurisdiction to determine the case.
He
also gave evidence on the grounds for the breakdown and why he believed that
there were no prospects of restoration of a normal marriage relationship
between them.
The
defendant in her evidence agreed that the marriage had indeed irretrievably
broken down to an extent whereby there was no reasonable prospect of
restoration to a normal marriage relationship between them. Upon hearing the
evidence of the break-down as testified to by the parties I was left in no
doubt that indeed there were no reasonable prospects of restoration of a normal
marriage relationship between the parties. The parties had become incompatible
and had lost love and affection for each other. Where parties have professed
that they no longer have any feelings of love or affection towards each other,
this court cannot force them to continue with the marriage relationship. It is
therefore inevitable that a decree of divorce be granted.
In
granting a decree of divorce this court is enjoined to also decide on the
proprietary and other ancillary issues as between the parties. In that regard
section 7(1) of the Act states 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-
(a)
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;
(b)
the payment of maintenance, whether by way of a lump sum
or by way of periodical payments, in favor of one or other of the spouses or of
any child of the marriage.”
Section 7(3) provides for assets that court may not consider in the
exercise of its powers in terms
of section 7(1) (a) these include assets acquired by inheritance, in terms of
any custom and which in terms of that custom, are intended to be held by the
spouse personally; or which have a sentimental value to the spouse concerned.
No such assets were pleaded in this case.
Section 7(4) of
the Act outlines some of the principle considerations court must take into
account in making an order in terms of section 7(1) thereof. Subsection (4)
states that:-
(4) In making an order
in terms of subsection (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 doing so
the court shall endeavor as far as is reasonable and practical 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 that court is enjoined to consider all the circumstances of a case. It
is thus incumbent upon the parties to candidly place before court all the
circumstances from which court will have to decide the case. The guidelines in
section 7(4) (a)-(g) can only be appropriately applied where the parties have
adduced evidence on the aspects. Without such evidence court may not be able to
apply due weight to each of the factors in arriving at its decision.
In
their closing submissions counsel for both parties implored court to consider
the provisions of section 7(4) of the Act in favor of their respective clients.
Unfortunately they could not adequately address on the aspects of their clients
evidence that touched on many of the factors in question. The predominant feature
in the evidence by the parties was that of contribution to the purchase and
development of the house.
The
plaintiff's evidence was to the effect that when they got married they briefly
lived in a single room. Soon thereafter they rented two rooms. He thereafter
obtained a loan to purchase the immovable property in question. He began
servicing the mortgage bond from his salary. This was in 2001. In August 2003
he paid off the mortgage bond using funds he had received as a gift from his
late young brother Bernard. That gift was his alone and so the entire loan for
the house was paid by him alone without the defendant's contribution.
When
the house was bought it was a core house. After paying off the bond he set upon
rebuilding the house to a 5 roomed house. That processes involved demolition of
the core house and rebuilding a new house all together. That house is almost
complete. It was the plaintiff's evidence that the defendant did not make any
financial contribution towards both the purchase and the rebuilding of the
house. The plaintiff went to great lengths to show that the house was bought
and rebuilt from his own financial resources with no contribution from the
defendant. He felt that because the defendant did not make any such
contribution she did not deserve any meaningful share in the house. To that end
he initially offered the defendant a 10% share. When asked why he had made such
an offer he said that:- “the 10% is meant to be a token of appreciation of the
time we shared as husband and wife.”
When
asked about his offer at the pre-trial conference of 20% he said: “I offered
the increase from 10% to 20% meant to cushion the defendant so that we could
meet halfway.”
Clearly
in my view the plaintiff had no appreciation of any meaningful contribution to
the matrimonial estate by the defendant. This is why he offered a token
percentage. The word token connotes a symbol, sign or just an indication.
The
plaintiff was asked to outline the contribution if any that the defendant did
to which he said that the defendant was involved in all the chores a house wife
does. She would prepare food for the builders. After demolition of the core
house by builders she would clean up around the construction site. She would
also clean up as the builders built the new house. He clearly belittled the
defendant's contribution to the purchase and development of the new house to
something inconsequential.
It
was because of his apparent belief that the defendant was not entitled to any
share of the matrimonial house as of right that the plaintiff said he was
initially offering the defendant 10% share as a token of appreciation of the
time they shared as husband and wife. When he upped the offer to 20% he said
this was to cushion the defendant and to meet halfway.
The
plaintiff's approach to the issue of distribution of matrimonial estate was
certainly flawed. In as far as it is admitted that the property is matrimonial
property that property is subject to distribution in terms of section 7(4) of
the Act. It is not within the plaintiff to 'give' as if he is being charitable.
The
plaintiff's attitude has been a subject of judicial correction in a number of
cases. For instance in Shenje v Shenje 2001 (2) ZLR 160 GILLESPIE J
alluded to the need to seriously consider the first two factors in section 7(4)
of the Act which deal with the parties' needs, then the parties expectations.
The learned Judge went on to indicate that those factors should not be
overshadowed by the fifth factor of contribution.
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.
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
considered primarily her needs and expectations rather than her contribution.
It
is apparent from the above cases that in deciding on what share to award in the
matrimonial estate, a party's direct financial contribution is only but one of
the factors to be considered. It is however not the defining factor. In as far
as court's endeavor is to ensure that each party lives a life as near as
possible to a life they lived before the divorce, the parties' needs and
expectations must always be seriously considered irrespective of the
differences in contributions.
It
is also important to appreciate the importance of indirect contribution made by
a party as more often than not such indirect contribution makes it possible for
the other party to divert most of their resources to the acquisition and
development of the matrimonial estate.
In casu the defendant contended that she
contributed to the matrimonial estate both directly and indirectly. Though her
direct financial contribution was less than the plaintiff's it must never the
less be considered as entitling her to a reasonable share in the estate.
There
was no doubt about her indirect contribution in taking care of the home and
providing a homely environment to the plaintiff. The plaintiff admitted to
that. She also attended to the builders when the plaintiff was at work.
The
defendant indicated that she engaged in the trade of buying and reselling of
various wares. On about five occasions she went out of the country on such
buying and re-selling missions. The money she realized from her trade was
utilized for family needs.
The
plaintiff in his evidence and under cross examination acknowledged this
contribution serve to say he deemed it insignificant. The defendant contended
that the gift from Bernard that the plaintiff said was used to pay off the
mortgage bond was in fact for both of them as a family and not for the
plaintiff alone. This is a point the parties did not agree. It is my view that
this would not be decisive to the distribution.
The
defendant went on to outline her needs and expectations. I did not hear the
plaintiff to seriously challenge the defendant's evidence on this. It is common
cause that as husband and wife the parties had graduated from being lodgers to
being proud house owners or land lords. With the divorce the defendant will no
longer be an owner of a house unless she gets a share big enough to enable her
to buy another house. Currently she is leaving in squalid conditions in
Matererini Flats Mbare, where she has to use communal toilet and ablution
facilities. The defendant's expectation of living as a house owner has been
shattered. The standard of living she had attained as the plaintiff's wife is
no more. The plaintiff on the other hand continues to enjoy the comfort and
status of a house owner with all the security that goes with it.
I am of the view that the 20% that the
plaintiff offered the defendant is not commensurate with the defendant's
contributions both direct and indirect for the 14 years they lived together. It
is also not adequate taking into account the defendant's needs and
expectations. The defendant needs such a share as would enable her to start a
new life at almost the same standard of living as was the case when she lived
with the plaintiff at their matrimonial home. If what they accrued as a couple
is not enough for both to sustain that standard of living then both should
share the disadvantages brought about by the divorce. A share in the region of
35% would, in my view, meet the justice of this case.
Accordingly it
is hereby ordered that:-
1. A decree of divorce be and is hereby
granted.
2. The plaintiff
is awarded a 65% share in the matrimonial home, being Stand 10771 Kuwadzana
Township of Fontainbleau Estate situate in the district of Salisbury; also
known as stand 10771 Kuwadzana Extension, Harare.
3. The defendant is hereby awarded 35%
share in the said matrimonial home.
4. The
parties shall agree on the value of the property within 7 days of this order.
If the parties fail to agree on
the value they shall appoint a mutually agreed
evaluator to evaluate the property
within 14 days of the date of this order.
If the parties fail to agree on an
evaluator, the Registrar of the High Court shall
be and is hereby directed to
appoint an independent evaluator from his panel of
evaluators to evaluate the
property.
The plaintiff
shall meet the cost of valuation.
5. The
plaintiff shall pay off the defendant her 35% share of the value of the
property within 120 days of the date of evaluation unless the parties agree
otherwise.
Should the
plaintiff fail to pay the defendant's share in full within the stipulated
period the property shall be sold to best advantage by a mutually agreed estate
agent or one appointed by the registrar of the High Court and the net proceeds
there from shall be shared in the ratio 65:35.
6. Each party shall pay their own costs of
suit.
Mkuhlani Chiperesa, plaintiff's legal practitioners.
Hute & Partners, defendant's legal practitioners.
