MUSAKWA
J: The plaintiff issued summons seeking a decree of divorce and a division of
the matrimonial estate. The defendant in turn, counter-claimed for a decree of
divorce and the division of the matrimonial estate of which the major claim is
a fifty percent share in house number 5 Rainbrant Close, Strathaven, Harare.
At
the pre-trial conference the parties agreed that the defendant's issues be
referred for trial. These were-
(a)
What property was acquired during the course of the
marriage.
(b)
What is a just and equitable distribution of the
property that was acquired during the course of the marriage.
(c)
What is reasonable maintenance for the minor child
Julie (born on 29 November, 2005).
The
parties had agreed that custody of the minor child be awarded to the defendant.
During the course of the trial the issue of maintenance for the minor child was
settled. The same applies to the division of the movable property which the
plaintiff conceded should all be awarded to the defendant. The only remaining
issue is whether house number 5 Rainbrant Close, Strathaven, Harare constitutes matrimonial property and
if so, how it should be apportioned.
The
parties got married in 2003. The plaintiff testified that problems commenced a
few months into the marriage. The parties would separate for a few days until
in 2006 when the defendant went away with their child for more than two months.
It
was the plaintiff's testimony that as from June 2006 they started living apart
although they remained under the same roof. Summons were issued in January 2007
and the defendant moved out during the same month. The plaintiff obtained a
loan from his employer in August 2006 and purchased the Strathaven house. He
produced all relevant documentation in respect of the purchase and transfer of
the immovable property. The agreement of sale shows that the transaction was
concluded in August 2006. The loan was serviced from deductions from his
salary. It was his evidence that the house was identified through a mutual
friend to the parties.
The
plaintiff further told the court that prior to their marriage the defendant was
employed by Nissan Zimbabwe and subsequent to their marriage she was no longer
employed. Prior to the marriage the plaintiff was staying in the United States
of America. Three weeks after the wedding they went to stay at his in-laws'
place for about two months. Thereafter they moved to his parents' house in
Kambanji.
As
regards his employment history the plaintiff told the court that he first worked
for a company that dealt in satellite technology called Integrated Digital
Technology. Thereafter in January 2004 he formed a company dealing in similar
business called Trinity Networks. He also worked for a financial services
company. As for his earnings he said it was difficult to say. He got employed
by the Reserve Bank of Zimbabwe around June/July 2004.
It
was during cross-examination that the plaintiff confirmed that they had agreed
that each party provides maintenance for the minor child in the sum of US$275.
He also offered to meet half the costs of their child's creche fees. In addition, he confirmed that the defendant could have all the movables.
On
the other hand the defendant testified that prior to the marriage she worked
for Nissan and left for AMC in 2001. Later she also sold vehicles on behalf of
Borrowdale Car Sales as well as Eastlea Motors. Prior to marriage she purchased
a Nissan Sunny vehicle for the plaintiff as well as a cell phone and line. She
was engaged in a variety of income generating activities like selling cement,
furniture and clothes.
When
they rented the Kambanji house from her in-laws she is the one who paid the
rent. It was her evidence that she even effected some improvements like the
erection of pillars and bird baths. The plaintiff occasionally purchased some
groceries. He was said to be given too much drink and had an obsession with
buying vehicles for himself.
The
defendant testified that she encouraged the plaintiff to secure a loan from the
Reserve Bank. She assisted in scouting for a suitable house. As a result they went
to view a house in Christon Bank and a stand in Nyanga. She also told her
friend Portia and Julie her hairdresser.
Around
June or July 2006 the defendant was given the telephone number of Mrs Du Toit.
The house that was being rented by Portia through Julie was up for sale. She
and plaintiff went to view the house. The defendant then discovered that the plaintiff
was having an affair with her former maid of honor.
According
to the defendant when summons for divorce were served on her in February 2007
they were now using separate bedrooms. She was adamant that between the
purchase of the house and January 2007 they were still living as husband and
wife. She had agreed that the house be registered in plaintiff's name. She
wants a half share as she looked after the plaintiff before they got married.
In addition she claimed that her income went towards the family's subsistence
as most of the plaintiff's salary went towards loan repayment.
Julie
Zieve also testified to the effect that she has known the defendant since she
was twelve years old. She confirmed that a client of hers, Mrs Du Toit
indicated that she wanted to sell her mother's Strathaven house. She gave Mrs
Du Toit's contact details to the defendant.
In
his submissions Mr Nyandoro pointed
out that by virtue of registered title the house belongs to the plaintiff. In
support of this he cited the case of Takafuma
v Takafuma 1994 (2) ZLR 103 (SC). He further submitted that the defendant
did not prove the extent of her indirect contribution. The defendant also did
not tender proof of her earnings. In this respect it was Mr Nyandoro's submission that the defendant
was not entitled to a share of the property since the evidence only shows that
she took care of the plaintiff for three months before their marriage.
On
the other hand Mr Chingore submitted
that the plaintiff was bound by his pleadings in which he denied owning the
house. The claim that the house was acquired when the parties had separated is
not part of the plaintiff's pleadings. Hence, he submitted that the defendant
made her case and was entitled to a 50% share of the house.
Applying
the approach in Takafuma's case the
house in issue is that of the plaintiff. That is so notwithstanding that the plaintiff
sought to suggest that he does not own it. The evidence available is that the
house is registered in his name. Regarding registration of title this is what
McNALLY J.A had to say Takafuma v Takafuma
supra at pp 105-106:
“The registration of rights in
immovable property in terms of the Deeds Registries Act [Chapter 139] is not a
mere matter of form. Nor is it simply a device to confound creditors or the tax
authorities. It is a matter of substance. It conveys real rights upon those in
whose name the property is registered. See the definition of "real
right" in s 2 of the Act. The real right of ownership, or jus in re propria, is "the sum
total of all the possible rights in a thing" - see Wille's Principles of
South African Law 8 ed p 255.”
Notwithstanding
the above, that is not the end of the matter because of s 7 of the Matrimonial
Causes Act [Cap 5:13] which provides
that:
“(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 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 favour of one or other of the spouses or of any child of the
marriage.
(2)
An order made in terms of subsection (1) may contain such consequential and
supplementary provisions as the appropriate court thinks necessary or expedient
for the purpose of giving effect to the order or for the purpose of securing
that the order operates fairly as between the spouses and may in particular,
but without prejudice to the generality of this subsection—
(a)
order any person who holds any property which forms part of the property of one
or other of the spouses to make such payment or transfer of such property as
may be specified in the order;
(b)
confer on any trustees of any property which is the subject of the order such
powers as appear to the appropriate court to be necessary or expedient.
(3)
The power of an appropriate court to make an order in terms of paragraph (a)
of subsection (1) shall not extend to 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 an 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.
(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 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 also not in doubt that
the purchase of the house was funded through the plaintiff's employer. The loan
was deducted from the plaintiff's salary. What has to be determined is the
extent of the defendant's indirect contributions. It does not really matter
whether the house was purchased before or after the parties had separated. This
is so because of s 7 of the Matrimonial Causes Act. Suffice though to note from
the evidence before me that the defendant's evidence regarding how the house
was purchased was not discredited. The defendant
could not have made efforts to negotiate the purchase if the parties were
already living apart as the plaintiff wanted the court to believe.
The only shortcoming in the
evidence before me is the extent of the defendant's indirect contribution. No
proof of her income was tendered. Even proof of the household expenses she
incurred was not tendered. The same shortcomings apply to the plaintiff's
evidence. For example the plaintiff could not state his earnings prior to
joining the Reserve Bank. Even his income at the Reserve Bank was not stated. Nonetheless, the defendant wants a half share
without having taken into account the provisions of the Act especially
regarding the direct or indirect contributions towards the home and family.
However, despite the lack of evidence regarding the extent of the defendant's
contribution the court has a wide discretion by virtue of s 7.
The provision in question was
given consideration in the case of Ncube
v Ncube 1993 (1) ZLR 39 (SC) in which KORSAH J.A. had this to say at pp
43-44:
“For
the determination of what is a fair and just division, apportionment or
distribution, so as to place the spouses in the position they would have been
in had a normal marriage relationship continued between them, consideration
must be given to all the surrounding circumstances including, but not limited
to, the matters specified under s 7(3) of the Act.
Clearly,
there is a difference between the phrases "assets of the spouses" and
"family assets", which latter phrase the learned MASTER OF THE ROLLS
said in Wachtel v Wachtel supra"refers to those things which are acquired
by one or other or both of the parties, with the intention that they there
should be a continuing provision for them and their children during their joint
lives, and used for the benefit of the family as a whole". The English
authorities abundantly establish that in respect of “family assets” a spouse cannot
reap where he or she has not sown and that to deserve a share of such assets a
spouse must have contributed money or money's worth. See Wachtel v Wachtel
supra at p 837f.
Notwithstanding
this difference between the phrases"assets of the spouses"
and
"family property", the provision by s 7(3) (d) that, in the distribution
of the assets of the spouses, regard must be had to the direct and indirect
contribution made by each spouse to the family, seems to me to suggest that it
is only in very exceptional circumstances that a spouse may benefit from assets
to which he or she has not contributed money or money's worth.
I am
in agreement with the learned trial judge that the rationale for taking into
consideration the matters specified under s 7(3) of the Act is to empower the
courts to prevent a spouse from acquiring a morally indefensible financial
advantage from the failed marriage. To achieve this, the court must take an
overall view of how justice can best be achieved between the parties. See
Beaumont v Beaumont 1987 (1) SA 967 (A) at 992D-F; Archer v Archer 1989 (2) SA
885 (E) at 894A.”
In making a determination on
this issue the court will take into account that the marriage between the
parties was of limited duration as it did not last four years. Of those four
years the house was purchased towards the end of that marriage. I will take
into account that the defendant contributed towards the upkeep of the family
although the extent of such contribution is not known as no figures were
adduced before the court.
I will also take into account
that the parties never lived in the house in question. Both parties are
gainfully employed although the plaintiff indicated that his salary is quite
low on account of the economic set-up currently prevailing. However, that does
not discount the prospects of better earnings in the future. Therefore, in
terms of future earning capacity I would say the parties' circumstances are
evenly balanced.
However, in terms of resources
or assets at the disposal of the parties, the plaintiff would be in a better
position by virtue of his ownership of the house. Had the marriage relationship
between the parties continued, the defendant would have benefited from the
house even if she was not a part-owner. The manner in which she could have
benefited would be varied. It could have been from occupation as matrimonial
home or from proceeds of rentals if they decided to lease it. However, taking
into account the limited duration of the marriage and the unproven extent of the
defendant's indirect contribution I would award her a fifteen percent share of
the house.
In the result it is
ordered as follows-
a) That
a decree of divorce be and is hereby granted.
b) All
movable assets that were in dispute be awarded to the defendant.
c) Custody
of the minor child, Julie Tungamirai (born 29 November 2005) be awarded to the
defendant with the plaintiff having reasonable rights of access.
d) The
plaintiff shall provide maintenance for the minor child at the rate of US$275
per month until the child attains the age of eighteen years or becomes
self-supporting, whichever occurs earlier.
e) The
plaintiff shall pay half of their minor child's school fees until the child
attains the age of eighteen years or becomes self-supporting, whichever occurs
earlier.
f) The
defendant is awarded a 15% share in house number 5 Rainbrant Close, Strathaven,
Harare.
g) Each
party shall bear their respective costs.
Musunga &
Associates, plaintiff's legal practitioners
Chingore &
Associates, defendant's legal practitioners
