CHITAKUNYE
J. On 20 November 1998 the plaintiff and the defendant were joined together in
holy matrimony by a Minister of religion in terms of the Marriages Act, [Cap 5:11]. It must have been a joyous
occasion for the parties and their respective families and friends. Being a
ceremony presided over by a minister of religion the usual religious vows to
live with each other in sickness and in health 'until death do us part' may
have been taken by the couple.
The marriage was
blessed with 3 children.
As
years went by, differences begun to emerge. The vows they had taken could no
longer be upheld. Plaintiff found himself unable to continue with the marriage hence
on 16 October 2007 he issued out summons for divorce against the defendant. The
plaintiff alleged that the marriage had irretrievably broken down to such an extent
that there is no possibility of the restoration of a normal marriage
relationship between them.
The
causes for the breakdown were outlined as:-
1. The defendant has
treated plaintiff with such cruelty as is incompatible with the continuation of
a normal marriage;
2. The defendant has
improperly associated with other men unknown to the plaintiff;
3. The parties have lost love and affection
for each other; and
4. The parties are incompatible and now
want to lead separate lives.
He
claimed custody of the 3 minor children of the marriage.
During the
subsistence of the marriage they had acquired both movable and immovable property.
He put forth his proposition of how best such property should be shared.
In
her initial response the defendant denied that the marriage had irretrievably
broken. She contended that she still loved the plaintiff as her husband. She
further disputed the issue of custody of the children and distribution of
matrimonial property.
At
the pre- trial conference the parties agreed that defendant should be awarded
custody of the 3 children with the plaintiff paying maintenance in terms of a
maintenance order granted by the maintenance court in case no. M1219/07. The
other issues remained unresolved.
When
the parties appeared before me for trial on 21 June 2010, they had agreed on all
the outstanding issues except the issue of the motor vehicles. Counsel for both
parties tendered a document titled 'consent order' duly signed by the parties'
respective legal practitioners. That document reflected what the parties had
agreed to as confirmed by their legal practitioners. Counsel submitted that the
document be taken as the parties' agreement on the dissolution of the marriage
and the distribution of the matrimonial estate.
The
parties having agreed on almost all the issues it remained for this court to
decide on whether the marriage had irretrievably broken down or not and also on
the distribution of the two motor vehicles that they had not agreed on, namely;
the Mazda B1800 and the Opel Kadett.
Though
the parties agreed that the marriage had irretrievably broken down it is for this
court to be satisfied that the marriage has indeed broken down to that extent.
It is only when court has been so satisfied that a decree of divorce may be
granted.
Section 5 of the Matrimonial Causes Act, [Cap 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.”
The factors or circumstances that court may consider are limitless. It is
up to the party alleging to establish the circumstances and show that those circumstances
make it impossible to continue with a normal marriage relationship. Section
5(2) confirms this by providing that:-
“(2) Subject
to subs (1), and without prejudice to any other facts or circumstances which may show the
irretrievable break-down of a marriage, an appropriate court may have regard to
the fact that-
(a)
the parties have not lived together as husband and wife
for a continuous period of at least twelve months immediately before the date
of commencement of the divorce action; or
(b)
the defendant has committed adultery which plaintiff
regards as incompatible with the continuation of a normal marriage
relationship; or
(c)
the defendant has been sentenced by a competent court
to imprisonment for a period of at least fifteen years or has, in terms of the
law relating to criminal procedure, been declared to be a habitual criminal or
has been sentenced to extended imprisonment and has, in accordance with such
declaration or sentence, been detained in prison for a continuous period of, or
for interrupted periods which in the aggregate amount to, at least five years,
within the ten years immediately before the commencement of the divorce action
; or
(d)
the defendant has, during the subsistence of the
marriage-
(i)
treated the plaintiff with such cruelty, mental or
otherwise; or
(ii)
habitually subjected himself or herself, as the case
may be, to the influence of intoxicating liquor or drugs to such an extent;
as is incompatible with the continuation of a normal marriage
relationship; as proof of irretrievable break-down of the marriage.”
In casu plaintiff alleged that:-
1.
Defendant has treated plaintiff
with such cruelty as is incompatible with the continuation of a normal
marriage;
2. That defendant has improperly associated with other men
unknown to plaintiff;
3. The parties have lost love and affection for each other and
4.
The parties are incompatible and now want to lead
separate lives.
In
his viva voce evidence plaintiff
alluded to his grounds for the break-down and to the fact that in those
circumstances it is impossible for the continuation of a normal marriage
relationship. He referred to some incidences of cruelty which he said
epitomized the type of cruelty he suffered at the hands of defendant. At the
end of his evidence on the break-down of the marriage it was clear that he had
no intention whatsoever of restoring the normal marriage relationship.
The
defendant did not say much except to admit that the marriage relationship has indeed
broken down beyond resuscitation.
It
was clear that the parties have grown further apart and were in no situation to
revive the marriage. In the circumstances I was satisfied that the marriage had
indeed irretrievably broken-down. A decree of divorce was the only route.
The issue of
custody and maintenance was resolved in terms of the parties' 'consent order'.
The
issue of distribution of the matrimonial property was also resolved serve for the
motor vehicles.
Section 7 (1) 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-
(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)
…….”
In
the exercise of the power to distribute the property s 7 (4) 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 , asset 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 the
children in the position they would have been in had a normal marriage
relationship continued between the spouses.”
From the evidence by both the plaintiff and the defendant it was clear that
the motor vehicles in question were acquired for the family by plaintiff. The
motor vehicles were being used for the benefit of the family. The contention
was mostly on who is in need of which motor vehicle.
The plaintiff's evidence was to the effect that from the time of purchase
the B1800 motor vehicle was intended for his use. The Opel Kadett was for
defendant's personal use and for ferrying children to and from school. He also
said that these two motor vehicles were the only motor vehicles he owned. The
Nissan Hardbody defendant had alluded to was involved in a road traffic
accident and was declared a write off. The only motor vehicles available are
therefore the B1800 and the Opel Kadett. As he was the one who had always been
using the B1800 he should be awarded that motor vehicle whilst defendant is
awarded the Opel Kadett which car she has always been using. When asked about
the motor vehicle he had been using since separation, plaintiff said that is a
motor vehicle provided by his employer on a temporal basis. It however became
clear that by virtue of his employment defendant is entitled to be provided
with a motor vehicle by his employer as a condition of service. Things being equal
he would be entitled to purchase that motor vehicle at the end of five years
from the date of its issuance.
The defendant's evidence on the motor vehicles was to the effect that she
needed the B1800 motor vehicle for her personal use and for ferrying children
to and from school. She indicated that the Opel Kadett was bought as a hedge against
inflation and not that it was bought for her personal use. She however acknowledges
to have used it for personal use and for ferrying children to school. She also
said that the Opel Kadett broke down and, due to its old age and state, is not
a reliable motor vehicle. She needed a reliable motor vehicle to ferry children
to school. She further testified that she has in fact been using the B1800 to
ferry children to and from school.
When asked about a motor vehicle which plaintiff said she was using and
not the B1800 defendant said that on occasions she has used the motor vehicle.
That motor is not hers. It is for her boss who is involved in an HIV programme
at her work place. The only reliable motor vehicle she would have is the B1800.
When the plaintiff's offer to have the Opel Kadett repaired at his expense was
put to her defendant said that it would still not be reliable due to its old age.
The evidence by the two was essentially a battle for the B1800. It is my
view that the issue can be resolved by referring to s 7(4) (a) –(c) as the
primary considerations in this case with other considerations as ancillary. Whilst the plaintiff may have been the one in
regular use of the B1800 whilst he lived with his family, since his departure from
the matrimonial home, about 3 years ago, he has not used it as it remained at
the family home. He never the less has been able to survive without evident
hardships. For the past 3 years the B1800 has been at the family home where defendant
said she has been using it.
It was clear from the evidence adduced that of the two parties, plaintiff
has better income earning capacity and is better positioned to find another motor
vehicle. The basic needs of the spouses now and in the near future are in favor
of defendant retaining a more reliable motor vehicle. I am of the view that
defendant has a greater need for the more reliable motor vehicle especially
that she needs to ferry children to and from school than plaintiff. The
plaintiff may have the Opel Kadett and decide on what to do with it if it is as
dysfunctional as defendant said or if it is repairable as plaintiff contended.
As the parties had agreed on all
other issues those will be incorporated as part of this order
Accordingly it is
hereby ordered that:-
- A decree of divorce be and is hereby granted.
- The defendant is awarded custody of the minor
children namely;
(i)
Colleen Tanyaradzwa Makonza, born on the 1st April 1999;
(ii)
Tawananyasha Langton Junior Makonza, born on the 5th April 2004;
(iii)
Tinomudaishe Lillian Lora Makonza, born on the 5th May 2006.
3. The plaintiff shall have access to
the minor children on:-
(i) Alternate weekends from Friday
5:00 pm to 5:00 pm on Sunday;
(ii) Alternate weeks of each school
holiday, commencing the first day, after the
term ends with access, during that first
week being exercised by the plaintiff,
provided however, that these periods can
be altered by the parties by prior
arrangement.
(iii)
Every alternate public holiday, that is to say, the first holiday in this case
being
New Year's Day, followed by the
other holidays during the year, which is Good
Friday, Easter Holiday, Independence Day,
Labour Day Africa Freedom Day,
Heroes Day, Armed Forces Day, Unity Day, Christmas
Day and Boxing Day.
- None of the minor children shall be removed from Zimbabwe
without the prior written consent of either parent, which consent shall
not be unreasonably refused.
- The plaintiff shall pay maintenance in terms of case
No. M1219/07, provided however that maintenance relating to one minor
child, (the subject matter of a paternity dispute, in Case No: M1219/07
that is: Tawananyasha Langton Junior Makonza, shall remain suspended until
such time as the issues in that case have been cleared.
- In consideration of the minor children's welfare, the
parties have agreed that the plaintiff shall be entitled to 45% of the
value of the immovable property, namely Stand No. 61 Alfred Road,
Greendale, Harare, and 55% to the defendant and the minor children, after
its valuation by a qualified valuer agreed to by both parties' legal
practitioners, or in the event of disagreement on the identity of the
valuer, such valuer shall be appointed by the registrar of the High Court (at
the joint instance of the parties' Legal Practitioners) within thirty(30)
days of the date of this order. In the event of the evaluation being
undertaken, defendant shall effect full payment of the plaintiff's entitlement,
within three (3) months of the delivery
of the Valuation report, on either parties Legal Practitioners and the
Registrar of the high court, proof of which shall be done by a certificate
of service, by plaintiff's Legal Practitioners on the defendants legal
practitioners and the Registrar of the High court, failing payment within
the aforesaid period, the property shall be put for sale to best advantage
and the proceeds shared as to 45% for the plaintiff and 55% for the defendant
and the minor children.
- The movable property shall be shared as follows:
(1) The plaintiff is awarded the following
as his sole and exclusive property:
Opel
Kadett motor vehicle registration no.535-710S;
Desk
fan
Video
Cassette Recorder
Refrigerator
3
Plate stove
(2) The defendant is hereby
awarded the following as her sole and exclusive property
Mazda
B1800 motor vehicle registration no. AAK 7389
All house hold movable property except those
items specifically awarded to the
plaintiff in clause 7 (1) above.
- Each party to pay their own costs.
Karuwa & Associates, plaintiff's legal practitioners.
Chikumbirike &
Associates, defendant's legal practitioners.
