CHITAKUNYE
J. The plaintiff married the defendant on 23 December 2000 at Rusape in terms
of the Marriages Act, [Cap 5:11]. The
marriages still subsists. They had however commenced living together as husband
and wife about two or three years before that date. Their union was blessed
with one minor child born on 20 June 1997. At the time plaintiff and defendant
started staying together plaintiff had not yet finalized his divorce from a
previous marriage.
During
the subsistence of the marriage the parties acquired numerous movable
properties. In 2005 they acquired an immovable property, namely Stand 104
Rusape Township, also known as house no. 12 Nyanga Drive Rusape. As fate would
have it their marriage was not to last long thereafter. On 14 April 2006
plaintiff sued defendant for a decree of divorce alleging that their marriage
had irretrievably broken down, a ground recognized in terms of s 5 of the
Matrimonial Causes Act, [Cap 5:13].
Apart
from seeking a decree of divorce plaintiff also prayed for a division of the
matrimonial estate and custody of their minor child. On the immovable property
he claimed a share of 75% with defendant retaining 25%.
The
defendant in her plea conceded that the marriage had indeed irretrievably
broken down to an extent that there is no reasonable prospect of the
restoration of a normal marriage relationship between them, albeit denying
being responsible for the breakdown. She made a counter claim for a decree of
divorce, a 50: 50 share of the immovable property and sharing of the movable
properties in terms of her own schedule. She also claimed custody of the minor
child.
At
the pre-trial conference the parties agreed on a number of issues. They agreed
on the sharing of the movable property and on the fact that their marriage had irretrievably
broken down. On 28 May 2007 a consent paper was filed with court on how the parties
had agreed to share the movable properties. That consent paper was duly signed
by the parties and their respective legal practitioners and is to form part of
the order in this case.
The issues referred to trial were as follows-
- Whether defendant made any direct or indirect
contributions to the acquisition of the matrimonial home Stand No. 12 Nyanga Drive,
Rusape. If so, whether she is entitled to a 50% share of the net value
thereof.
- Which parent shall be the custodian of the minor
child and what would be reasonable rights of access for the non-custodian
parent.
On the trial date the issue of custody and access by the non-custodian
parent had been resolved. The parties confirmed that they had agreed that
custody be awarded to the plaintiff with defendant being granted reasonable rights
of access on agreed terms.
Though in their pleadings neither of them had claimed for maintenance in
the event of being granted custody, the question of maintenance was raised as
an issue when the parties testified. Plaintiff claimed maintenance for the
child from defendant in the sum of one hundred United
States dollars per month whilst defendant offered thirty United States
dollars per month only.
The issues that the court was left seized with were thus on the sharing
of the immovable property and the quantum of maintenance that defendant should
contribute towards the child.
- Whether defendant
made any direct or indirect contributions to the acquisition of the matrimonial home.
From the evidence adduced from both parties it is common cause that the
immovable property in question, that is, stand 104 Rusape Township,
also known as 12 Nyanga Drive,
Rusape, was bought and registered in the joint names of the parties. The
agreement of sale shows the purchasers as Samuel Kanoyangwa and Winifreder
Charlie. The Deed of Transfer is also in the joint names of Sarudazayi Samuel
Kanoyangwa and Winifreder Charlie. That per se shows that the property is
jointly owned.
It is common cause that the plaintiff who was employed by TEL -ONE opted
to go on voluntary retirement in the year 2005. As a result he was paid a retrenchment
package in the sum of $597 285 061-92 Zimbabwean dollars. It was from this sum
that he paid the purchase price of $315 000 000-00 and the transfer fees in the
sum of $ 24 096 985.00. This was all in Zimbabwe dollars.
The plaintiff on his part argued that as the property was paid for
entirely from his retrenchment package defendant did not deserve a 50% share.
When asked why the defendant's name was included in both the Agreement of Sale
and the Deed of Transfer, plaintiff said that as someone who had divorced
before, his experience had taught him that even if a spouse's name is not included
on the deed of transfer she will still be entitled to a share. Thus, in this
case, when the estate agent advised him that defendant wanted her name to be
included on the agreement of sale he agreed because from his experience, she
would still be entitled to a share even if her name was not included. He however emphasized that when he agreed to
the inclusion of defendant's name, it was not that he intended her to be an
owner of 50% of the property or even that he was donating to her a 50% share in
the property.
The defendant in her evidence confirmed that both the purchase price and
the transfer fees were paid from plaintiff's retrenchment package. None of her
earnings went towards the purchase price or transfer fees. The defendant's
evidence was more on her indirect contribution. She contended that though she
did not make a direct contribution to the purchase price and transfer fees, as
plaintiff's wife for 10 years and as someone who contributed in her own way to
other household needs and also as a registered joint owner she was entitled to a
50% share.
The issue of distribution of matrimonial property is dealt with in s 7 of
the Matrimonial Causes Act [Cap.5:13].
Section 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, 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 spouse.”
It
is apparent that the at the end of the inquiry or trial court must endeavour to
distribute the property in such a way as to place the parties and the children
in the position they would have been had a normal marriage relationship
continued. That task in my view is not an easy one.
In
casu the parties concentrated on the
considerations in s 7 (4) (e) and (g). Where, as in this case, the immovable
property is registered in the joint names of the spouses our courts have in a
number of cases advocated the need to recognize this fact as a starting point.
This is so because were a property is registered in joint names the presumption
is that it is held in equal shares unless proved otherwise.
In
Takafuma v Takafuma 1994(2) ZLR
103(S) court was faced with a similar situation. In that case the immovable
property had been bought using a 100% guarantee provided by the husband's employer.
All loan repayments were deducted from the husband's salary. The property was
however registered in the parties' joint names. On divorce, the husband contended
that the wife did not deserve a 50% share. On appeal against the lower court's
decision by the husband MCNALLY JA at p105H stated that-
“The
registration of rights in immovable property in terms of the Deed Registries
Act [Cap 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.”
In
Ncube v Ncube S 6/93, another case
where the property was registered in joint names of the spouses yet the wife
was alleged not to have contributed towards the purchase price; KORSAH JA at
p11 had this to say-
“It is incorrect
to say that appellant as a registered joint owner is not entitled to a half
share of the value of the Napier
Avenue property because she did not contribute
money or money's worth towards the acquisition of the property. As a registered
joint owner she is in law entitled to a half share of the value of that
property. The proper approach is to accord her share of that property and then
taking into account all the assets of
both spouses to endeavour as far as is reasonable and practicable and is just
to do so, to place the spouses in the position they would have been in had a
normal marriage relationship continued between them. In the performance of this
duty a court is empowered, in the exercise of its discretion, to order that any
asset be transferred from one spouse to the other.”
In
order to take a spouse's share and transfer it to the other there ought to be
some solid ground for so doing.
In
Lafontant v Kennedy 2000(2) ZLR 280(S)
court had occasion to deal with such a scenario and stated at 284C-D that-
“The court
cannot move from that position on mere grounds of equity. It cannot give away
A's property to B on the mere grounds that it would be fair and reasonable, or
just and equitable to do so. There must be a more solid foundation in law than
that.”
Some
of the instances were court was persuaded to move from the 50:50 share the
court referred to were-
1. Nyamweda v Georgias 1988 (2) ZLR 422 (S)
where the reason advanced was that
Miss Nyamweda
was found by the court to have been an agent for her undisclosed principal, Mr.
Georgias. She was in effect his nominee at will.
- In Young v van
Rensburg 1991(2) ZLR 149 (S) where KORSAH JA held that Van Rensburg
created Young a nominee for the respondent (van Rensburg) and that on
demand the appellant would transfer the farm to the respondent.
- In Lafontant
case supra where at p.285C-D the judge said that-
“I think, by
claiming and proving that she alone paid for the property, it must necessarily
follow, if it was registered in their joint names, that she effectively gave
him the half share as her nominee, for convenience. By instituting action she
is terminating that nomination. The cases of Nyamweda supra and Young
supra are appropriate precedents.”
In casu it is common cause that the entire
purchase price and transfer fees were paid from plaintiff's retrenchment package.
That package was not the couple's savings over a period of time. It was not
like a loan where repayments would be needed and whereby during the period of
repayment defendant would take care of some aspects to cushion plaintiff.
Clearly in my view the circumstances show that this is an appropriate case were
defendant's share may be tampered in favor of plaintiff.
As
for her contribution defendant contended that she operated a video club and did
some interior décor work making curtains. She also was a director of a family
company SAMECORD. I did not however hear her to seriously say that the ventures
brought in substantial income to the family. Indeed plaintiff said he had to subsidize
defendant in the video club. The video club was more to keep defendant occupied
than anything viable. The interior décor business even from defendant's
evidence was not a big income generating venture. It was more of a hobby or
pastime activity than a serious business. As for the family company SAMECORD,
not much could be gathered on its operations and contributions to the family estate.
What is unquestionable is that no income from that venture went towards the
purchase of the immovable property in question. Its insignificancy can also be
discerned from the fact that both spouses never brought it up in their
pleadings. It is something that came up as they testified. Had it been a
serious venture with substantial income I am of the view that either of the
spouses would have mentioned it in their pleadings.
This
must however not be taken to demean defendant's contribution to the matrimonial
estate. She did contribute in her own way for those 10 years they were married
by doing the usual household chores expected of a wife and providing moral
support to plaintiff. Financially she contributed in her own way.
I
am however of the view that a proper foundation has been laid for the reduction
of defendants share from 50%. A reduction by a 15% would in my view meet the
justice of the case.
2. Maintenance
The issue of maintenance was never raised in
the pleadings. It only arose after the parties had agreed that plaintiff should
be awarded custody of the minor child. As a result of this neither party seemed
prepared to properly testify on this issue. The plaintiff said he required a
sum of $100 United States
dollars per month from defendant as part of her contribution towards the
upbringing of their minor child. When asked to justify the figure plaintiff had
to literally think on his feet as to how to arrive at that figure. In that
regard he gave his list of expenses as follows-
Accommodation…… $ 40.00,
Food……………….. $20.00,
Clothing ……………. $20.00, and
School fees ………… $20.00.
He
conceded that he had not discussed the issue of maintenance with defendant. He
also had not attempted to ascertain defendant's income and whether defendant
could afford such a sum. The plaintiff said he was not employed but somehow did
not disclose how he is surviving and how he had been able to provide for the
child so far. When defendant's dire financial situation was put to him he had
no ready answers save to say that he knows that she is working at a certain
school. Plaintiff was unaware of the nature of engagement defendant was involved
in at the school. He thus could not deny that defendant was doing voluntary
work. He was equally unaware of her income from that voluntary work and other activities
she engaged in. Plaintiff could not
rebut defendant's contention that she can not afford a $100 per month as her monthly
income averages between $80 and $120 dollars per month.
The
defendant's evidence on this issue was to the effect that she is working on a
voluntary basis at a private school. The school has provided her with
accommodation. She also does some odd jobs. From all these activities she
realizes $80 to $120 per month. It is from this income that she survives. She
thus offered a sum of $30 maintenance for their minor child.
It
is my view that in the absence of better evidence from which a higher sum may
be derived the defendants offer has to stand. An order for maintenance must be
within the means of the non-custodian parent. In the circumstances a
maintenance order in the sum of $30 per month will be granted.
Accordingly it
is hereby ordered that-
1. A decree of divorce be and is hereby
granted.
2. Custody of the minor
child Kundai Nesbert Kanoyangwa (born 20 June 1997) is hereby awarded to the
plaintiff
3. The defendant shall
enjoy reasonable access to the minor child every fortnight during weekends.
During school holidays the child shall be with defendant for 2 weeks of the
holiday.
4. The consent paper signed
by the parties and filed of record and annexed to this order shall regulate the
distribution of the parties' movable property.
5. The plaintiff is hereby
awarded a 65% share in the matrimonial home being Stand 104 Rusape Township,
also known as House No. 12 Nyanga Drive Rusape.
6. The defendant is awarded 35% of the
said matrimonial property.
7.
The parties
shall agree on the value of the property within 7 days of the
date of this order failing which
they shall appoint a mutually agreed
evaluator to evaluate the property
within 14 days of the date of this order.
Should 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 costs
of such evaluation.
8.
The plaintiff
shall pay off defendant her 35% share of the value of the
property within120 days from the date of
receipt of the evaluation report
unless the parties agree otherwise.
Should the plaintiff fail to pay
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 thereof shall be shared in the ratio 65:35.
9. Each party shall pay their own costs.
Muvingi Mugadza & Mukome, plaintiff's legal practitioners
Muza and Nyapadi, defendant's legal practitioners.
