MUSAKWA
J: The parties are agreed that the marriage relationship has irretrievably
broken down. They settled ancillary issues on custody, maintenance and sharing
of movables. The only outstanding issue is the division of the immovable
property at the centre of the dispute.
Although
the defendant is the one who initiated the divorce proceedings, she subsequently
withdrew her claim. The plaintiff, who had filed a counter-claim, persisted
with his suit. It is therefore convenient to refer to the original defendant as
the plaintiff and the original plaintiff as the defendant.
The
plaintiff testified that they married in 2002. He is a property analyst with
Kingdom Financial Holdings. He confirmed that they settled all other issues
other than that of the immovable property.
The
matrimonial home was purchased when he was a valuer with Beverley Building
Society. He obtained a staff mortgage in October 2000. It was a 100% loan that
was deducted from his salary. The interest was concessionary at a rate of 12, 5
% per annum. The plaintiff produced copies of pay slips to show the deductions
that were made. Transfer of title was
effected in December of the same year.
According
to the plaintiff the defendant only started to work in 2001. She got a job as a
property negotiator with Eagle Estate Agents. She was not in receipt of a
regular salary but was paid a commission based on a concluded sale. She could
go for three months without concluding a sale. The few sales she concluded were
jointly concluded with other employees. He therefore subsidized the defendant
apart from also paying the rates and fending for the family.
The
plaintiff further testified that between February and June 2003 the defendant
worked for an interior decoration company. She earned a small basic salary and
was also to be paid a commission. However, she was said not to have concluded
any sale. In August 2003 she got a job with National Social Security Authority.
She worked there until February 2004. Thereafter she got a job at the Births
and Deaths Registry and was deployed to Concession. Sometimes he had to offer
her a car and fuel as her salary was low.
When
the defendant was working for Eagle Estate Agents she secured a loan with which
she paid a deposit towards the purchase of a stand in Ruwa. The plaintiff made
the repayments on her behalf. They subsequently sold the stand. According to
the plaintiff the money they realized was not substantial as they used it for
payment of school fees and to meet other needs. He was adamant that they
disposed of the stand after he had paid off the mortgage.
The
mortgage on the house was paid off in December 2004. The plaintiff estimated
his contribution at 80%. Currently the plaintiff occupies the main wing whilst
the defendant and the children occupy the guest wing.
Although
the parties had agreed that the marriage has irretrievably broken down, the plaintiff
resuscitated the cause of breakdown. He insisted that the defendant infected
him with an incurable sexually transmitted infection in 2004. On this ground he
insisted that the defendant could not be awarded an equal share in the house.
The
plaintiff also confirmed that since the fallout he has formed a relationship
with another woman with whom he has a child. He preferred to be given an option
to buy out the defendant's share failing which the house should be sold and the
proceeds shared in accordance with his evidence regarding their respective
contributions. He stated that he would be able to buy out the defendant's share
within twelve months.
The
defendant testified that they used to reside in Mutare. When they relocated to Harare she quit her job.
She had to look for employment in order to supplement the plaintiff's income as
it could not meet all their needs. Although she conceded that whilst at Eagle
Estate Agents she did not earn a basic salary, she stated that she did not
spend more than three months without concluding a sale. She claimed that she
was paid commission at the rate of forty percent. Thus she worked for Eagle
Real Estate between 2001 and 2003. She quit because she could no longer secure
clients. She then joined Looking Glass where she was in receipt of a basic
salary and commission. Her stint with looking Glass was for four months. They
combined their earnings.
After
Looking Glass the defendant worked in the data capturing department at National
Social Security Authority (NASSA). She claimed that she earned a good salary
and that her bank book was kept by the plaintiff. In August 2000 she joined the
Registrar-General's Office where she worked in The Births And Deaths Registry.
At the time of trial she worked for Motor City Ford.
Apart
from confirming the various engagements with the different employers as stated
by the plaintiff the defendant also told the court she did household chores
like cooking, washing, ironing and gardening. This was on account of the size
of the house which she said a single maid could not cope with on her own.
The
plaintiff sought to make an issue of the defendant's misconduct during the
course of marriage. In his pleadings he claimed that the defendant had infected
her with an incurable sexually transmitted disease. Despite the parties
agreeing that the marriage had irretrievably broken down, the plaintiff took up
the issue of infection during trial. He sought to argue that the defendant
should be penalized on account of this act of infidelity. During her testimony the
defendant countered that in 2005 she discovered that the plaintiff was having
an affair with a certain woman who was enrolled at Mkoba Teachers College. She
also claimed that the plaintiff fathered a child with another woman during the
course of their marriage.
Although
the defendant confirmed that she was diagnosed to be infected with a venereal
disease, she denied being the guilty party. When the plaintiff found out that
he was infected he demanded that the defendant should go for a medical
examination and that is how she discovered that she was infected. However,
taking into account the plaintiff's admission of fathering a child with another
woman during the course of his marriage to the defendant, it cannot be
concluded that the defendant was the source of the sexually transmitted
infection. The plaintiff was already having another affair with the woman as
evidenced by the offspring he sired. It cannot be mere coincidence that the
same woman from Gweru is the one with whom the plaintiff is currently staying
following the fallout with the defendant. To put it figuratively, the plaintiff
was already staying in a glass house and is seeking to throw stones at the
defendant. The maxim caveat fornicator could equally apply to the facts of this
case.
In
his address Mr Muza submitted that
since the house is registered in plaintiff's name it is legally his. In support
of this submission he cited the case of Takafuma
v Takafuma 1994 (2) ZLR 94 (SC). He further submitted that the parties
should be awarded in terms of their contributions. In this respect he cited the
case of Ncube v Ncube 1993 (1) ZLR
39(SC).
Although
Mr Muza conceded that the defendant
made non-financial contributions he also pointed out that the parties employed
a maid. He submitted that the defendant's evidence on the nature of her
contributions was generalized as she did not produce any pay slips or other
supporting documentary proof. Mr Muza
also submitted that the defendant should not benefit from a marriage whose end
she precipitated by virtue of the sexually transmitted infection. In his view
the defendant should be awarded a twenty percent share. Mr Muza also submitted that the court has discretion to order that the
plaintiff should provide the defendant with accommodation similar to the one
she is currently occupying for the sake of the children.
On
the other hand Mr Govere submitted
that the defendant should be awarded a fifty percent share. He based this on
the duration of the marriage as well as the fact that the defendant was
gainfully employed and did other domestic chores for the family. He also
submitted that the evidence before the court was inconclusive regarding who
between the parties was responsible for infecting the other with a venereal
disease. Above all Mr Govere
submitted that the court should apply s 7 (4) of the Matrimonial Causes Act [Cap 5:13] in making a determination on
the distribution of the house.
The
starting point to note is that in determining a division of assets following a
divorce the court has a wide discretion by virtue of s 7 (1) of the Matrimonial
Causes Act which 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)
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.”
On the other hand, to give effect to s 7 (1) ss (4)
provides 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 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.”
There is no doubt that the house in question was
solely purchased through a loan obtained by the plaintiff from his employer.
The loan was deducted from his salary. The only issue is the extent of the
defendant's indirect contributions.
The first thing to note is that the defendant was
not constantly employed during the subsistence of the marriage. She changed
jobs frequently. She did not give evidence on what she earned with the various
employers. That notwithstanding, she insisted that she is entitled to fifty
percent of the house by virtue of her indirect contribution as well as the
duration of the marriage. The marriage was of limited duration as it did not
last more than four years. From the available evidence the parties have not
lived as husband and wife since 2004 when they made accusations and
counter-accusations of infidelity against each other.
In view of the parties' respective occupations and
taken that the matrimonial property is registered in the plaintiff's name, it
is clear that the plaintiff has better resources than the defendant. The court
should endeavor to place the parties in the position they would have been had a
normal marriage relationship continued. In this case the defendant would have
continued to enjoy the use and comfort of the matrimonial home. However, in
light of the limited duration of the marriage and the lack of direct
contribution on the part of the defendant I am satisfied that her share does
not amount to fifty percent.
I am mindful that it is not easy to quantify the indirect
contribution of a spouse who apart from being formally employed also doubles as
wife, counselor and a jack of many trades within the home. But the duration of
a marriage is a useful guiding factor. The longer the marriage the greater the
value of indirect contribution such that it is unavoidable to award the parties
equal shares.
S 7 (4) was applied in the case of Usayi v Usayi 2003 (1) ZLR 684 (S) which
both counsels referred to. In that case the parties had been married for thirty
nine years. The husband had sold the matrimonial home by the time the divorce
was granted. This was despite the husband having been interdicted from
disposing of the house pending the outcome of the divorce process. The parties
were awarded equal shares of the proceeds of the matrimonial home.
On appeal ZIYAMBI J.A had occasion to comment on s 7
(4) and stated as follows at p 688-
“………The
Act speaks of direct and indirect contributions. How can one quantify in
monetary terms the contribution of a wife and mother who for thirty nine years
faithfully performed her duties as wife, mother, counselor, domestic worker,
housekeeper, day and night nurse for her husband and children? How can one
place a monetary value on the love, thoughtfulness and attention to detail that
she puts into all the routine and sometimes boring duties attendant on keeping
a household running smoothly and a husband and children happy? How can one
measure in monetary terms the creation of a home and the creation of an
atmosphere therein from which both husband and children can function to the
best of their ability? In light of these many and various duties, how can one
say, as is often remarked: “throughout the marriage she was a housewife. She
never worked”. In my judgment, it is precisely because no monetary value can be
placed on the performance of these duties that the Act speaks of '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.” A fair approach is that set out by Professor Ncube in
his book Family Law in Zimbabwe. At p. 178 he said:
“Our
courts, when formulating a legal approach to the re-allocation of property on
divorce, should not attempt to attach a monetary value to the intangible and
unquantifiable domestic contributions of a housewife. As Gray aptly puts it:
'A
just and realistic evaluation of her efforts depends instead upon the avoidance
of the absolute terms of cash value in preference for the relative approach of
differential equality between financial and non-financial contributions to the
acquisition of matrimonial assets.'
Thus
the evaluation process should not seek to determine how much a house keeper is
worth in comparison with, for example, a university lecturer, nor should the
process seek to determine the value of a wife's cooking, washing and rearing of
children as compared to, say, a government minister's work. The proper approach
would be to presume that in the majority of marriages the spouses assume equivalent,
though different, duties which are equally beneficial to the welfare of the
family.”
The
learned judge adopted this approach. At p 110 of the record, she said:
“This,
in my view, is a proper case in which to adopt the approach set out by Professor
Ncube in his book whereby it should be presumed that the plaintiff assumed
equivalent, though different duties, which were equally beneficial to the
welfare of the family. It is she who for many years was left at the communal
home as sole custodian of the children, in charge of the family. In that role,
she enabled her husband, the defendant, to engage in the academic pursuits
abroad which placed him in a position to improve the family's standard of
living. It is her contribution on the domestic front which freed her husband to
work outside the home. But for her efforts, the home and family may not have
remained intact. Such a contribution cannot be undervalued. She is over 60
years of age and has no income of her own. By virtue of her age and lack of training,
she has no prospects of obtaining employment.”
In
my view, no basis has been shown for altering the judgment of the High Court.
The appeal is therefore dismissed with costs.”
In my view, the above approach is fair as it is not
possible to quantify a spouse's indirect contribution during the course of a
marriage. However, in the present case the defendant was also relying on direct
financial contributions since she was employed. It is only the nature of her
earnings that was not proven. It should have been possible for her to prove her
earnings in order to assist the court in assessing how the earnings compared to
those of the plaintiff as well as how those earnings, combined with the
indirect contributions of a wife and mother compared with those of the
plaintiff. Obviously, had the marriage lasted considerably long, the proportion
of her share should have increased considerably. Based on the duration of the
marriage I am of the view that the defendant is entitled to a thirty percent
share of the matrimonial home. I have taken into account that the plaintiff
offered to secure alternative accommodation for the children comprising two
bedrooms within Waterfalls.
It is therefore ordered as follows-
a)
That a decree of divorce be and is
hereby granted.
b)
That custody of the minor children,
Chiedza Mutenda (born on 25 July 2000) and Shawn Mutenda (born on 24 July 2005)
be and is hereby granted to the defendant with the plaintiff exercising rights
of access in terms of the settlement reached prior to trial.
c)
That the plaintiff shall pay the
children's school fees and other school related expenses until the children
attain the ages of eighteen years or become self-supporting whichever occurs
earlier.
d)
The plaintiff shall provide groceries
for the minor children in terms of the deed of settlement dated 3 February
2009.
e)
The plaintiff and the defendant shall
share the costs of the children's clothing until the children reach the ages of
eighteen years or become self-supporting whichever occurs earlier.
f)
The plaintiff shall secure two bed
roomed accommodation for the minor children within the Waterfalls area before
they leave the matrimonial home.
g)
The movable assets shall be shared in
accordance with a settlement reached by the parties prior to trial.
h)
The plaintiff is awarded a seventy
percent share of subdivision A of Lot 20-23 Inclusive Parktown Extension Of
Upper Waterfall whilst the defendant is awarded a thirty percent share.
i)
The Registrar shall appoint an estate
agent for valuation of the matrimonial home. The costs of valuation shall be
borne by the parties in proportion to the shares awarded to them.
j)
The plaintiff is given an option to buy
out the defendant's share within twelve months from the granting of this order
failing which the property shall be sold to best advantage on the open market
with the parties sharing the net proceeds in proportion to the shares awarded
to them.
k)
That each party bears their own costs.
Muza & Nyapadi,
plaintiff's legal practitioners
Coghlan,
Welsh & Guest,
defendant's legal practitioners