The distribution of matrimonial property pursuant to a decree
of divorce is provided for in accordance with the provisions of section 7 of
the Matrimonial Causes Act [Chapter 5:13], “the Act”.
It is trite that the court faced with such a
dispute is required to exercise discretion,
which discretion it has been held in ...
The distribution of matrimonial property pursuant to a decree
of divorce is provided for in accordance with the provisions of section 7 of
the Matrimonial Causes Act [Chapter 5:13], “the Act”.
It is trite that the court faced with such a
dispute is required to exercise discretion,
which discretion it has been held in numerous authorities must be
exercised judicially.
The approach which a court should adopt in apportioning the
assets of parties following the dissolution of a registered marriage was set
out by McNALLY JA in Takafuma v Takafuma 1994 (2) ZLR 103 (S). In that case,
the learned judge stated…,:
“The duty of a court, in terms of s 7 of the Matrimonial
Causes Act, involves the exercise of a considerable discretion, but it is a
discretion which must be exercised judicially. The court does not simply lump
all the property together and then hand it out in as fair a way as possible. It
must begin, I would suggest, by sorting out the property into three lots, which
I will term “his”, “hers” and “theirs”. Then it will concentrate on the third
lot marked “theirs”. It will apportion this lot using the criteria set out in s
7(3) of the Act. Then it will allocate to the husband the items marked “his”,
plus the appropriate share of the items marked “theirs”. And the same to the
wife. This is the first stage.
Next it will look at the overall result, again applying the
criteria set out in s 7(3) and consider whether the objective has been
achieved, namely, “as far as is reasonable and practicable and, having regard
to their conduct, is just to do so, to place the spouses…, in the position they
would have been had a normal relationship continued”…,.
Only at that stage, I would suggest, should the court
consider taking away from one or other of the spouses something which is
actually 'his or 'hers'.”
The appellant contends that the court a quo exercised its
discretion erroneously, acted on the wrong principle and failed to take into
account some relevant considerations in its apportionment of the assets of the
spouses upon the dissolution of the parties' union. It is also contended that
the court lumped all the property as 'theirs' and proceeded to apportion the
assets in 'as fair a way' as possible. It was submitted that to this extent,
the court a quo departed from the correct approach stipulated in Takafuma v
Takafuma 1994 (2) ZLR 103 (S).
It was further argued that this was a proper case for
intervention by the Appellate Court.
The appellant is correct in his assertion that in the
exercise of its discretion in terms of section 7(4) of the Matrimonial Causes
Act [Chapter 5:13], a court is enjoined to take into account all the factors
set out in the provision, and that if the court fails to take into account any
relevant factor then it would have failed to exercise its discretion
judicially. Therefore, the starting point to the enquiry is the creation by a
court of three lots, 'theirs', 'his' and 'hers'. The court then follows up the
process by applying the criteria set forth in section 7(4) of the Matrimonial
Causes Act [Chapter 5:13].
The principle set out Takafuma v Takafuma 1994 (2) ZLR 103 (S)
is that in the distribution of property by a court pursuant to a decree of
divorce it must be clear as to which property is individual and which
constitutes matrimonial property. Only the latter category constitutes the assets
subject to apportionment by the court in the exercise of its discretion. A
court must therefore endeavor to clarify the category in which the assets
forming the subject of the dispute fall. However, it must be made clear that
the authority does not prescribe a stringent form that parties must always
adhere to but the result from the exercise of discretion by the court must make
it clear which property is 'his', 'hers' or 'theirs'.
It is clear from a reading of the judgment that the court a
quo was fully alive to the principle set out in section 7(4) of the Matrimonial
Causes Act [Chapter 5:13] and applied it correctly. The court approached the
matter in the following manner:
“From the totality of the evidence before this court, it is
not in dispute that the parties were married for about twenty years and that
they acquired substantial property jointly and individually. It is not in
dispute that both plaintiff and defendant are executives with professional
qualifications worth noting and that they were not living a substandard style
of life. The case of Shenje v Shenje (supra) spelt out that all contributions
material or otherwise matter when it comes to the consideration of all
circumstances with a view to coming up with a fair distribution, trying of course
to place the parties in a position they would have been had the marriage
remained intact. It is apparent from the evidence on record that all the
property mentioned in the pleadings and during trial falls under assets of the
spouses which fall for distribution, division and apportionment. One needs not
go further than the Matrimonial Causes Act. Also, as clearly spelt out in Gonye
v Gonye (supra) it would be erroneous to exclude property acquired by a spouse
during the period of separation as that would not only fetter the wide
discretion of the court on the rights of the parties but would also create an
unjust situation.
It is my considered view, in the circumstances of this case
that all the property acquired by either of the spouses with or without
knowledge of the other ought to fall for consideration.”
In its determination on the question of distribution of the
matrimonial assets of the parties, the court a quo found that theirs was a
marriage of equals. The two are well educated, with both of them holding Degrees
in their respective professions. Both were employed throughout the greater part
of the marriage. Whilst the respondent brought everything into the joint
estate, the appellant would purchase assets without the knowledge of the
respondent. On his own evidence, he also disposed of vehicles behind her back
and never accounted for the proceeds. The court took into account that the
respondent and the children were living in the matrimonial home, whilst the
appellant had created a home for himself in South Africa. Fully alive to the
provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13], the court
a quo considered that it would be impractical for the parties to share the
matrimonial home as joint owners.
An order where they were made to share would also not
achieve a clean break in the relationship.
The court a quo is heavily criticized for not following the
approach set out by McNALLY JA in Takafuma v Takafuma 1994 (2) ZLR 103 (S). It
was suggested, in argument, that to the extent that the court a quo did not
create three such lots of property at the start of the apportionment process,
then its decision would be founded on a wrong principle.
It appears to me that the court in Takafuma v Takafuma 1994
(2) ZLR 103 (S) was setting out an approach on the correct way of achieving an
equitable distribution. The factors that a court had to take into account in
the distribution are set out in the Matrimonial Causes Act [Chapter 5:13]. The
principle itself is found in the Matrimonial Causes Act. The appellant fails to
appreciate that what Takafuma v Takafuma 1994 (2) ZLR 103 (S) prescribes is a
formula and it is not one that is applicable in every situation. It is
erroneous, in my view, to suggest that the court a quo should have strictly
followed the formula as set out by McNALLY JA.
In this case, the court found that all the property, with
the exception of the Stand in Chitungwiza, was acquired during the union. In
such a case, one cannot speak of piles. They do not exist as all the property
is matrimonial property and falls for distribution.
The court a quo did not create three lots of the
matrimonial estate. That is not to say that its approach was incorrect. Having
found that theirs was a marriage of equals, there were no baskets in which to
place the properties. It became unnecessary to do so.
The court a quo ordered that the respondent be awarded the
following immovable property:-
(i) A 100 per cent share in 3 Wye Turn Crescent.
(ii) A 100 per cent share in 1 Reigate Flats.
(iii) A 50 per cent share in Collen Brander Milton Park.
(iv) A 50 per cent share in 397 Tariro Road, Unit F Seke,
Chitungwiza.
(v) A 50 per cent share in Eastcourt, Belvedere.
(vi) A 50 per cent share in 39A Dover Rd.
The appellant was awarded the following property:-
(i) A 100 per cent share in 10 Elizabeth Avenue, Rivonia,
Sandton, Johannesburg, South Africa.
(ii) A 100 per cent share in 13 Mardmaz Flats, 109
Baines Avenue.
(iii) A 50 per cent share in Eastcourt, Belvedere.
(iv) A 100 per cent share in 2 Reigate Flats.
(v) A 50 per cent share in 39A Dover Rd….,.
In addition to the above, the court a quo found, as a fact,
that the appellant had lied to it with regards to his interest in some of the
immovable properties. The evidence revealed that the appellant had purchased 2
Reigate, 29A Dover Rd, 44 East Court, Belvedere and the Rivonia property behind
the respondent's back. The court clearly had in mind, when distributing the
assets, the fact that the appellant had not only tried to hide his assets he
had also misled the court in the manner in which he had pleaded. He had stated
that the Rivonia property was rented. In relation to 29A Dover Rd, the
appellant initially denied its existence only to later claim that it was
jointly owned with a friend residing in the United Kingdom.
In Beckford v Beckford 2009 (1) ZLR 271 (S), this court
stated:
“Having rejected Mr Beckford's evidence in respect of the
proprietary rights of the parties, the learned trial judge said the following
at pp 81-82 of the cyclostyled judgment:
'I however, find that the plaintiff did not disclose all
his assets - especially after he instituted these proceedings. The consequences
of his attitude are summed up in the English Court of Appeal by BUTLER-SLOSS
LJ, in Baker v Baker ([1995] 2 FLR 829 (CA)) at page 835, in these words:
'Mr Posnansky pointed to an utterly false case and asked us
to consider why the husband was lying and what did he have to hide. If the
cupboard was bare, it was in his interests to open it and display its meager
contents. But on the contrary, the husband, despite his protestations to the
contrary, continued to live the life of an affluent man. I agree with the
submissions from Mr Posnansky that if a court finds that the husband has lied
about his means, and failed to give full and frank disclosure, it is open to
the court to find that beneath the false presentation, and the reasons for it,
are undisclosed assets.'
I will use this fact against him in distributing the assets
that he disclosed.
It is fair, just and equitable that I award to the
defendant all the money that is held in the joint account of their respective
English solicitors. I have agonized over the appropriate order to make
concerning the distribution of the immovable properties that the plaintiff
disclosed which are registered in England.
In making the order that I have come to, I have been
influenced in great measure by the plaintiff's failure to make full and frank
disclosure, the size of the business transactions that were carried out by
Coralsands and the concomitant income that must have accrued to him, the
benefit that accrued to him from the disposal of 7A Granville Road to Nicky
Morris on 10 November 2005, the concerted program that he undertook in asset
stripping the matrimonial estate to his benefit and to the impoverishment of
the defendant of which the registration of a charge in favour of his parents
for £67,000= against 390 Sutton Common Road was part of, his financial acumen
and resourcefulness and his apparent disdain for the integrity of the legal
process. I will order that the two disclosed properties be transferred into the
defendant's name while the plaintiff shall remain responsible for the discharge
of all the encumbrances, such as the mortgages and restrictions registered
against them.
The issue which now arises is whether there is any basis
for interfering with the proprietary awards made by the learned trial judge in
favour of Mrs Beckford in terms of paras 16 to 19 of the order.
I do not think there is.
In Baker v Baker supra OTTON LJ, who concurred with
BUTLER-SLOSS LJ who prepared the main judgment, said the following at 837:
'Accordingly, the husband cannot complain if the judge,
following authority, explored what was before him and drew inferences which may
turn out to be less fortunate than they might have been had he been more frank
and disclosed his affairs more fully. Such inferences must be properly drawn
and reasonable. On appeal, it may be possible for either party to show that the
inferences or the award were unreasonable in the sense that no judge faced with
the information before him could have drawn the inferences or awarded the
figures that he did. I am satisfied that the appellant has not succeeded in
demonstrating that the figures WARD J awarded were in any regard unreasonable
or unjustified.'
In the present case, I am not prepared to say that no Judge
could have drawn the inferences or made the awards made by the learned trial
judge. There is, therefore, no basis for interfering with the awards made.”
The appellant has also criticized the trial court for
awarding the respondent 50 per cent of the herd of cattle currently at his plot
in Mhangura, whilst at the same time allowing the respondent to retain whatever
movable assets were at her farm in Shamva.
In respect of this ground, I find that the appellant has
not shown that the court a quo grossly misdirected itself in the manner in
which it disposed of the cattle. The court found that the appellant had sold
some of the cattle after divorce proceedings had commenced. By law, that sale
should have been taken into account which should have resulted in the
respondent being awarded a greater number than the 50 per cent. In fact, the
court awarded the appellant all the farm equipment, yet he does not claim that
this has resulted in an inequitable distribution.
The mere fact that the court did not make an order in
respect to property at the respondent's farm would not, on its own, justify
interference by this court of the award of half of the herd of cattle to the
respondent. Further to this, the appellant had lied to the court regarding the
existence of the very cattle whose disposition he now seeks to challenge….,.
Similarly, I find no merit on the attack against the
inclusion of the Land Rover Discovery in the matrimonial assets. The court
disbelieved the appellant and found the respondent a more credible witness.
This finding has not been challenged on appeal.
It appears to me that the appellant has not shown, that in
making the award in respect of the matrimonial estate, the court a quo took
leave of its senses, applied a wrong principle or overlooked critical evidence.
It is trite that an Appellate Court is loathe to interfere
with the exercise of such discretion unless it has been shown that the trial
court exercised its discretion improperly. It was stated in Barros v Chimphonda
1999 (1) ZLR 58 (S)…., as follows:
“The attack upon the determination of the learned judge
that there were no special circumstances for preferring the second purchaser
above the first one - which clearly involved the exercise of judicial
discretion - may only be interfered with on limited grounds. See Farmers'
Co-operative Society v Berry 1912 AD 343 at 350. These grounds are firmly
entrenched. It is not enough that the Appellate Court considers that if it had
been in the position of the primary court it would have taken a different
course. It must appear that some error has been made in exercising the
discretion. If the primary court acts upon the wrong principle, if it allows
extraneous or irrelevant factors to guide or affect it, if it mistakes the
facts, if it does not take into account some relevant consideration, then its
determination should be reviewed and the appellate court may exercise its own
discretion in substitution; provided always it has materials for doing so.
In short, this court is not imbued with the same broad
discretion as enjoyed by the trial court.”
Given that the distribution of assets in a matrimonial
dispute has as its premise the exercise of discretion on the part of the trial
court, it was incumbent upon the appellant to show that in this case the court
did not exercise its discretion properly. The appellant, in my view, had to
establish that in its distribution of the assets of the parties, the court a
quo failed to uphold the principles set out in section 7 of the Matrimonial
Causes Act [Chapter 5:13].
The distribution of matrimonial property is done in the
exercise of a discretion which an Appellate Court should be slow to interfere
with.
It has not been shown that the court acted upon a wrong
principle. Nor does it appear that the court a quo made an error in the
exercise of its discretion under section 7 of the Matrimonial Causes Act
[Chapter 5:13]. The formula suggested by the appellant, in deciding which
property belongs to whom, would result in this Court ignoring property that
falls for distribution as matrimonial assets. This Court would, in fact, fall
into an error. The court a quo was correct in its manner of distribution.
I find no misdirection.
