CHITAKUNYE
J: The plaintiff and defendant were married
to each other at Harare Magistrates Court
on 7 June 1993 in terms of the Marriages Act, Cap 37 (now Chapter 5:11) and the marriage still
subsists. They had however commenced living together as husband and wife in
terms of customary law in between the years 1987 and 1988 (the exact year is
not agreed). Their marriage was blessed with two children who were born on 2 May
1989 and 3 March, 1995 respectively.
During
the subsistence of the marriage they acquired various movable property and an immovable
property namely, House No. 25
Ambleside Crescent, Braeside, Harare.
On
7 August 2009 the plaintiff filed a suit for divorce against the defendant. The
plaintiff alleged that the marriage relationship had irretrievably broken down
to such an extent that there was no reasonable prospect of the restoration of a
normal marriage relationship between them in that:
“1. Defendant inflicts mental and
physical torture upon the plaintiff constantly;
2. The parties have lost love and affection for each other;
3. The parties are no longer compatible
4. The parties have lost trust in each other
5. There has been no enjoyment of conjugal rights for a continuous
period of three years.”
He
sought that custody of the minor child be awarded to defendant with him
enjoying reasonable rights of access. He offered to provide Medical Aid, all
school fees and levies for the minor child in addition to providing clothes and
food for the child.
On
the distribution of properties, plaintiff suggested that the property be
distributed as per his Annexure 'A' to the summons.
The
defendant in her plea conceded that the marriage had indeed irretrievably
broken down to such an extent that there were no prospects of restoration of a normal
marriage relationship. She thus agreed that a decree of divorce should be
granted in the circumstances.
She
had no quarrels with being granted custody of the minor child with plaintiff
enjoying rights of access.
The
defendant further agreed with the manner of sharing the movable property as per
plaintiff's annexure 'A'. She however disagreed with the plaintiff's suggestion
on how to deal with the immovable property. In her plea she suggested that:-
“It
is just and equitable that the defendant remains in the matrimonial home until
both children become self supporting whereupon the property will be sold and proceeds
shared equally between the parties. Alternatively, the property be sold and the
proceeds shared equally between the parties while the plaintiff looks and pays
for alternative accommodation for the children.”
The plaintiff
would not agree to the counter proposal.
On 2 July 2010 during
a pre-trial conference held before GUVAVA J. the parties confirmed the areas of
disagreement and agreement. They thereafter signed a Deed of Settlement
confirming the manner in which all other issues were to be settled serve for the
matrimonial home. The Deed of Settlement states among other things that:-
“……..Whereas the
parties are agreeable on the divorce being granted and share a consensus regarding
issues of maintenance and distribution of movable property.
Whereas the
parties have agreed to refer one issue to trial.
Whereas the
parties have agreed to capture these issues in a deed of settlement which shall
be registered as an order of this court as follows:
A MOVABLE PROPERTY
1. The plaintiff shall be awarded
the following property:-
(i) Mazda 323 registration Number AAI 4843
(ii) Peugeot 504 registration
Number AAI 7792
(iii) LG. 21 inch television set
(iv)
Satellite dish
(v)
Multichoice 720 Satellite dish
(vi)
210 litres chest freezer (KIC)
2. The defendant shall be awarded
the following movable property.
(i)
Maroon Lounge suite (including
tables)
(ii)
Black center cabinet
(iii)
Black and Brass T.V. Stand
(iv)
Samsung stereo 3 CD Changer
(v)
Phillips Video Player/ Recorder
(vi)
Phillips 21 inch TV set
(vii)
Fortech Star Satellite Decoder
(viii)
9 piece dining room suite
(ix)
Display cabinet
(x)
Upright Imperial Fridge/Freezer Double door
(xi)
Princes 4 plate stove
(xii)
Akira Microwave
(xiii)
Dutchess Bedroom Suite (3 piece)
(xiv)
Ortho king bed
(xv)
Foam double bed
(xvi)
Zambezi nomadic
wardrobe
(xvii)
Spare lounge suite
(xviii)
Two plate stove with oven.
B CUSTODY AND MAINTEAINANCE
(i) The defendant shall be awarded custody
of the minor child with plaintiff being
allowed
reasonable access upon reasonable notice being given to defendant.
(ii)
The plaintiff shall pay and provide for the minor child's
medical aid, all school fees, school levies, food and clothing needs until such
time as the minor child attains the age of 18 years or becomes self
supporting……”
C. ISSUE FOR TRIAL
The only issue the parties could not agree on and which was referred for trial
was- “Whether or not the defendant is entitled to an equal share of the
immovable property specifically House number 25 Ambleside Crescent, Braeside, Harare”; in other words, 'how the matrimonial home should be
divided between the parties'.
Both parties gave evidence. From the evidence adduced certain aspects are
common cause. It is common cause that at the time of marriage defendant had
just completed her Ordinary Level education. She thereafter, with the
assistance of plaintiff, attended a teacher training college from where she
obtained a diploma in teacher education. She went on to obtain a degree in
education from a local University. As a qualified teacher she started working
in January 1994. At that time the couple had no immovable property. Plaintiff
was working for Merchant Bank of Central Africa (MBCA).
It is further common cause that the immovable property in question was
acquired in 1995 through a loan facility provided by plaintiff's employer. The
loan repayments were being deducted from plaintiff's salary. In as far as the
purchase price is concerned there was no direct contribution by defendant. It
is because of this lack of direct financial contribution towards the purchase
price that plaintiff argued that defendant did not deserve any share in the
immovable property.
In his evidence
in chief plaintiff was asked –
“At this stage you are not
prepared to offer anything to defendant?”
To
which he replied- “yes. The reasons are that when she went for training as a
secondary school teacher I paid for her fees. She has been awarded every thing
and I am walking onto the ground. When my employer bought the house they were
buying it for their employee, not for employee and wife.”
When
asked if defendant had made any direct and indirect contribution to the house
plaintiff was categorical that defendant made no direct contribution all she
could do as a normal wife was to suggest what the couple should do and he would
then use his resources to do that. On indirect contributions plaintiff admitted
that defendant made indirect contributions. The defendant paid the salary for
the maid for the duration of their marriage since she started working.
Defendant also bought grocery items for the family. Plaintiff's response in
this regard was in these words- “Yes I agree she would pay maid's salary as she
engaged them and I would pay gardeners I engaged. I let her buy perishables
whilst I would buy capitals like meat.”
It was clear that plaintiff, whilst admitting
that defendant used her income for the benefit of the family, tried to belittle
that contribution. Under cross examination he admitted that defendant besides
grocery items also bought clothes for their children,
The
defendant in her evidence contended that whilst she did not make a direct contribution
towards the purchase price, she made a direct contribution towards improvements
such as the extension of sections of the house. She also bought house hold goods
such as furniture on hire purchase and through loans she got from financial
institutions. She used to pay the maid, buy clothes for the family, pay telephone
landline bills, buy movables, and buy groceries except meat which plaintiff used
to buy. When asked about her contribution to the loan for the purchase of the
house she replied that-
“The major contribution I made to the purchase
of the matrimonial home is the emotional support I gave defendant during our
time together.”
Besides that emotional support it was also her
evidence that she “paid for the extension of the house, paid for construction
of the veranda, paid for slab at the backside of the house”. She went on to say
that she has been paying all bills for the house since 2007 when plaintiff
moved out such as owner's charges/ rates and maintaining the house.
In
his cross examination of defendant I did not hear plaintiff to deny that
defendant used her income for the benefit of the family though of course he
denied that she expended any of her money on improvements/extensions to the
house. One can thus safely say that since she started working defendant has
contributed her income towards the needs of the family. The question is: does that
entitle her to any share in the matrimonial home? If so, what share is she
entitled to? The plaintiff's position was simply that what ever contributions
defendant did entitled her to only the movable items the parties agreed she
should get.
The question of distribution of
matrimonial estate is dealt with under s 7 of the Matrimonial Causes Act, [Chapter 5:13].
Section 7 (1) 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.”
As regards the basic considerations in deciding on how
best to distribute the assets or property, s 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 spouses.”
It is apparent therefore that the fact of direct contribution to the
purchase of a particular asset is not the only consideration to be taken into
account. Court is enjoined to consider all
the circumstances of the case, including the above stated factors. The crux
of the matter is in deciding on what weight to place on each of the factors to
be considered. Whatever weight is placed on the factors must be such as to
place the spouses in the position they would have been in had a normal marriage
relationship continued.
In Sithole v Sithole and Another
HB 14/94 at p11 of the cyclostyled judgment CHEDA J (as he then was) remarked
that-
“It is accepted
that even a wife who is not employed makes a contribution if she looks after
the family's affairs and the parties' children enabling the man to be away to
work and earn a living for the family. Such a wife cannot, on divorce, go empty
handed just because she did not contribute financially.”
In that case both spouses had been employed throughout their marriage
with the wife earning far much less than the husband. The matrimonial home was
acquired through a mortgage bond whose repayments were deducted from the husband's
salary. The wife took care of other expenses such as telephone bills and
groceries. She also bought most of the movables. The wife claimed a 50% share
of the matrimonial home whilst defendant offered her a 25% share. After a careful
consideration of the matter, court awarded plaintiff a 40% share of the
matrimonial home.
Equally in Muteke v Muteke S
88/94, the wife made no direct financial contribution except as a housewife but
court considered primarily her needs and expectations rather than her
contribution.
In casu, there is no denying
that defendant made direct financial contribution towards household needs of
the family throughout the period of their marriage from when she started
working. I did not hear plaintiff to complain that defendant did not commit
most of her income to the needs of the family. By such contributions defendant
enabled plaintiff to comfortably repay the housing loan from his employer. In a
way defendant did contribute indirectly to the purchase of the house. Her contribution
cannot be trivialized as it enabled plaintiff to concentrate on repaying the
loan knowing fully well that the other needs of the family were being taken
care of by defendant.
In
Usayi v Usayi 2003 (1) ZLR 684 (S)
the Supreme Court in upholding a High Court decision to award a 50% share to a
non-working housewife of many years held that:-
“It is not
possible to quantify in monetary terms the contribution of a wife and mother
who for many years faithfully performed her duties as wife, mother, counselor,
domestic worker, house keeper, and day and night nurse for her husband and
children. It is not possible to place a monetary value on the love,
thoughtfulness and attention to detail that she put into the routine and
sometimes boring duties attendant on keeping a household running smoothly and a
husband and children happy; nor can one measure in monetary terms the creation
of a home and an atmosphere from which both husband and children can function
to the best of their ability. In the light of these many and various duties,
one cannot say, as is often remarked: “throughout the marriage she was a house
wife. She never worked.”
In
that case the parties had been married for a period of about 35 years. In casu the marriage lasted about 20 years
and defendant contributed most of her salary and other income to the needs of
the family. A period of 20 years is certainly long. It is a period whereby the
plaintiff and defendant lived as husband and wife, each contributing to the
best of their ability, to the well-being of their family. They were amassing
their estate as a family and not that each was amassing their individual estate.
The defendant's contribution cannot in my view be trivialized in those
circumstances.
The
plaintiff's argument that the movable property allotted to defendant suffice
for her contribution was without merit. A careful analysis of the movable
property shared between the parties shows that plaintiff got valuable movables
as well. In the absence of given values, it is my view that the sharing of the
movables should not prejudice defendant in the sharing of immovable property.
In
casu both parties are still in employment
and so capable of earning their own living. They had reached a stage in their
lives were they owned an immovable property. If anyone is to move out he/she
must go out with a reasonable share to probably be able to acquire or secure
accommodation for him or herself. It is also important to consider that both of
them committed their salaries to their family during the 20 years of their
marriage. It is only fair and just that the sharing ratio reflect the above key
considerations in this case. .
After
a careful analysis of the evidence and circumstances of the parties I am of the
view that a 55:45 sharing ratio would meet the justice of the case.
Accordingly
it is hereby ordered that:-
1.
A decree of divorce be and is hereby granted.
2.
The defendant is awarded custody of the minor child,
Gwinyai George , born 3rd March 1995, with plaintiff being granted reasonable
rights of access upon reasonable notice to defendant
3.
The plaintiff shall pay and provide for the minor
child's Medical Aid, all school fees, school levies, food and clothing needs
until such time as the child attains the age of 18 years or becomes self
supporting whichever is earlier.
4.
The plaintiff is awarded the following movable property
(i) Mazda 323 motor vehicle registration
No. AAI 4843
(ii) Peugeot 504 motor vehicle registration
No. AAI 7792
(iii)
LG. 21 inch Television set
(iv)
Satellite dish
(v)
Multichoice 720 Satellite dish
(vi)
210 litres Chest Freezer (KIC)
5.
The defendant is awarded the following movable property-
(i) Maroon Lounge suite (including tables)
(ii) Black center cabinet
(iii)
Black and Brass TV. Stand
(iv)
Samsung stereo 3 CD Changer
(v)
Phillips Video Player/ Recorder
(vi)
Phillips 21 inch TV set
(vii)
Fortech Star Satellite Decoder
(viii)
9 piece Dining room suite
(ix)
Display Cabinet
(x)
Upright Imperial Fridge/Freezer Double door
(xi)
Princess 4 Plate stove
(xii)
Akira Microwave
(xiii)
Dutchess Bedroom suite (3 piece)
(xiv)
Ortho King bed
(xv)
Foam double bed
(xvi)
Zambezi nomadic
wardrobe
(xvii)
Spare lounge suite
(xviii)
Two plate stove with oven
On the immovable property.
6.
The plaintiff is awarded a 55% share of the matrimonial
property, being Stand 8670 Salisbury Township of Salisbury Township Lands also
known as House No. 25 Ambleside Crescent, Braeside, Harare.
7.
The defendant is awarded a 45% share in the above described
matrimonial property.
8.
The plaintiff is hereby granted the option to buy out the defendant in respect of
her 45% share in the matrimonial property
(i) The parties shall agree on the
value of the property within 14 days of the
date of this order. If
parties fail to agree on the value they shall within 28
days of this order appoint a
mutually agreed evaluator to evaluate the
property.
(ii) Should they 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.
(iii) The plaintiff shall meet the cost of such
evaluation.
9.
The plaintiff shall pay off defendant her 45% share of
the value of the property within 120 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 there from shall be
shared in the ratio 55:45
10. Each
party shall bear their own costs of suit.
Vasco Shamu & Associates, plaintiff's legal practitioners
Gonese, Jessie Majome
& Co. defendant's legal practitioners
