CHITAKUNYE
J: The plaintiff and defendant were
married in terms of customary law in 1976. In the year 1983 their marriage was
solemnized in terms of the Marriages Act, Chapter
37 (now 5:11) at Harare.
Both parties were born and bred in Zimbabwe
and so Zimbabwe
is their country of domicile. Their marriage was blessed with six children.
Their last born children are twins born on 25 April 1992.
On 10 April 2007, the plaintiff instituted
proceedings seeking a decree of divorce and other ancillary relief against the
defendant. The plaintiff alleged that their marriage had irretrievably broken
down to such an extent that there are no reasonable prospects for the
restoration of a normal marriage relationship. She claimed for an 80% share in
the matrimonial home being 7
Orchard Lane, Hatfield, Harare with the defendant retaining 20% share.
The
defendant in his plea admitted that the marriage had indeed irretrievably
broken down to such an extent that there are no reasonable prospects of restoration
to a normal marriage relationship. He however attributed the breakdown of the
marriage to the plaintiff. He also agreed that the plaintiff can have custody
of the two minor children with the defendant being granted rights of access.
The
defendant objected to the distribution of immovable property as suggested by the
plaintiff. He contended that no 7
Orchard Lane, Hatfield, Harare is registered in the joint names of the
plaintiff and defendant. The property was jointly acquired and so he owns 50%
of the property and not 20%. He also pointed out that there is another immovable
property jointly acquired but registered in the plaintiff's name, that is Stand number 4620
Chikanga Township of Stand 4966 Chikanga
Township, Mutare. As this
property was also jointly acquired he is entitled to a 50% share thereof.
On
movable property the defendant said they jointly acquired a Nissan Sunny motor
vehicle and so he is entitled to 50% of its value.
With
each party maintaining their stance a pre-trial conference was held on 7 May
2010. The pre-trial conference minute shows that during that meeting parties
agreed that:
1. That the marriage
had irretrievably broken down and that a decree of divorce should be granted.
2. That house number 4620 Chikanga Township, Mutare was acquired by the
parties during the subsistence of their marriage.
Issues referred for trial were as follows:
1 In what shares should House Number 7 Orchard
Lane, Hatfield, Harare
be apportioned between the parties?
2. Whether House Number 4620 Chikanga Township,
Mutare forms part of the matrimonial property. If so, how should it be
distributed amongst the parties?
3. Whether the Nissan Sunny motor vehicle is
part of the matrimonial property. If so, in what portions should its current
value be apportioned and shared by the parties?
In
their evidence in court each party chronicled how the properties in question
were acquired and how they felt the property should be shared. They seemed to
digress from their pleadings in some aspects. For instance whilst in her
declaration the plaintiff said that the defendant should be awarded 20% share
of the matrimonial house, 7 Orchard Lane, Hatfield, Harare, in her viva voce evidence she now offered the defendant
10 % and argued that she is entitled to a 90% share.
It
also transpired under cross examination that there were other immovable properties
the plaintiff had purchased but which she had not disclosed in her pleadings.
The defendant cross examined her on these properties in an effort to show that
the properties were acquired during the subsistence of the marriage and so he
should get a share in each of the properties. The plaintiff on her part
maintained that those properties were acquired through her efforts, those of
her sister and other members of her family and the defendant never contributed
anything towards the acquisition.
In
his evidence in chief the defendant did not adhere to his stance as per his
pleadings. He now said that after thinking
about the issue the matrimonial property, that is, 7 Orchard Lane should now be registered
in the names of their youngest children. He was no longer seeking that the house
be in his name or that they share equally with the plaintiff. He went on to say
that he no longer wished to raise issue with the Mutare house, the Chitungwiza
properties and even the Nissan Sunny motor vehicle. All he now desired was that
No 7 Orchard Lane be registered in the a
names of their two last born children and that he be given about 6 months to
move out of the house.
In
her cross examination of the defendant, the plaintiff did not go along with the
defendant's suggestion. She insisted that the house must be apportioned
according to her claim. She alluded to the fact that during the pre-trial
conference meeting she had suggested to the defendant that the house be registered
in the names of their children but the defendant had refused to which the defendant
denied contending that it is the plaintiff who had changed her mind about that
suggestion.
It
was clear to me that the parties had indeed at some stage entertained the idea
of registering the house in the names of their children but perhaps due to lack
of proper legal guidance they could not agree on some aspects of that
suggestion.
In
her closing submissions the plaintiff altered her position. She now said that:
“I now agree to the proposal given by Mr Mhlanga that the house be registered
in the children's names that is Samson Mhlanga and Lesley Mhlanga twins born on
25 April 1992.”
She
thus no longer wished to be awarded 90% share of the house with the defendant
getting 10% share. That in a way disposed of the immovable property.
The
plaintiff for some reason went on to suggest that their other daughter Lynet
Memory Nashe (nee Mhlanga) be included for the purposes of her seeing to it
that Samson and Lesley keep the house nicely, that is, as an overseer. This
suggestion was not accepted by the defendant who felt the two who are now
adults do not need an overseer.
Another
aspect the plaintiff brought in which was never part of the pleadings and was thus
never canvassed in evidence is that of post divorce maintenance. In her closing
submissions she now asked for an order to be issued to the effect that the
maintenance order granted at the Magistrate
Court in case number M1357/07 should continue post
divorce. Unfortunately, post divorce maintenance must be justified by evidence.
In Kangai v Kangai HH 52-07 GOWORA J remarked that:
“A woman who has
been divorced is no longer entitled as of right to be maintained by her former
husband until re-marriage or death. Where the woman is young and had worked
before the marriage, and is thus in a position to support herself, where there
are no minor children, she will not be awarded maintenance. If she had given up
her job to look after the family she will be awarded maintenance for a short
period to allow her time to get back on her feet. Where the divorced woman is
middle aged she will be given maintenance for a period long enough to allow her
to be trained or retrained. On the other hand elderly women who cannot be
trained or remarried are entitled to permanent maintenance. See Chiomba v Chiomba 1992 (2) ZLR 197.”
It
must be clear therefore that post divorce maintenance can no longer be awarded
on mere say so but must be claimed and proved. Such a claim not having been in
the pleadings and not even in the evidence adduced in court can not be
considered in the circumstances. I am of the view that no post divorce maintenance
will be awarded as none was claimed.
Equally
the prayer for other relief that was not claimed in the pleadings such as
arrear maintenance, outstanding bills for electricity and water, repairs to damages
to 7 Orchard Lane,
Hatfield, Harare
cannot succeed.
I
am of the view that all that needs to be done as regards the properties is to
grant the order in the manner the parties seem to have now agreed and to allow the
defendant a reasonable period within which to vacate the house and an order that
ownership be transferred within a reasonable period. Neither party indicated who
is going to meet transfer costs. As both parties seem capable of earning income
they will have to share transfer costs.
Accordingly it is
hereby ordered that:
- A decree of divorce be and is hereby granted
- The matrimonial home that is No. 7 Orchard Lane, Hatfield, Harare is awarded to
the parties' children namely Samson Mhlanga born 25 April 1992 and Lesley
Mhlanga born 25 April1992 in equal shares.
- The plaintiff and defendant shall sign all the
necessary documents to enable transfer within 90 days of the date of this
order.
- The defendant shall vacate the matrimonial home
within six (6) months of the date of this order. Should he fail to do so
the Deputy Sheriff, Harare
be and is hereby directed to eject him at the instance of the registered
new holders of title.
- The plaintiff and defendant shall pay the costs of
transfer in equal proportions
- Each party shall bear their own costs of suit.
Plaintiff in person
Defendant in person.
