1

HH 313-16

HC 2237/13

IVY KULUBE (nee MOYO)

versus

KENNEDY KULUBE

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 26 May 2016

Divorce action

F.G Gijima, for the plaintiff

L. Dzumbunu, for the defendant

CHITAKUNYE J: The plaintiff and defendant were married on 14 December 1979 at Chipata, Zambia in terms of the Zambian Marriages Act. That Act is equivalent to Zimbabwe’s Marriages Act [Chapter 5:11]. In 1981 the parties relocated to Zimbabwe and have been in Zimbabwe ever since.

The defendant was born in Zimbabwe and is permanently resident in Zimbabwe as such he regards Zimbabwe as his country of domicile. By virtual of that this court has jurisdiction to determine the matrimonial issues between the parties.

Their marriage was blessed with 5 children who are now all adults.

On 20 March 2013, the plaintiff issued summons out of this court for a decree of divorce and other ancillary issues.

The plaintiff alleged that the marriage has irretrievably broken down to such an extent that there are no reasonable prospects of restoration to a normal marriage relationship. The reasons she advanced were that:

1. The defendant committed adultery in that he deserted the plaintiff for another

woman in 1993;

(b)  The defendant failed to live like a responsible husband and father in that he failed  

       to financially look after his family;

(c)  Due to the foregoing, the plaintiff has lost love and affection for the defendant.

During the subsistence of the marriage the parties acquired an immovable property namely Number 15 Ifield Close, Mabelreign, Harare. Initially the plaintiff suggested that she be awarded 85% whilst the defendant is awarded 15% of this property. Later she amended her pleadings to now claim for 100% of the property to be awarded to her.

            The plaintiff also asked for spousal post divorce maintenance in the sum of US$200 per month.

In his plea the defendant admitted that the marriage had indeed irretrievably broken down albeit not for the reasons advanced by the plaintiff. He contended that the marriage had irretrievably broken down due to constant arguments which were inconsistent with the continuation of a normal and functional marriage. He however did not disclose the source of these arguments.

The defendant indicated that he is unable to pay spousal post divorce maintenance as he is unemployed having retired in 2002 due to ill health.

The defendant made a counter claim in which he sought a 50:50 sharing of the matrimonial house.

At a pre-trial conference held on 28 January 2014, the parties agreed that:

1. The marriage has irretrievably broken down with no prospects of restoration to a  

normal marriage relationship.

1. Each party should keep the movable property in its custody as his/her sole and  

exclusive property.

The only issue referred for trial was on how the matrimonial home should be distributed between the parties.

It is apparent from the above that plaintiff abandoned her claim for post divorce spousal maintenance.

What would be a fair and equitable distribution of the matrimonial home namely Number 15 Ifield Close Mabelreign, Harare.

The plaintiff gave evidence after which the defendant gave evidence. They both tendered their respective bundles of documents in support of their cases.

From the evidence adduced it is agreed that the property in question was acquired in 1983 through a mortgage bond and such bond was in defendant’s name. The bond was serviced through deductions from the defendant’s salary. The bond was paid off in 2002.

It is also common cause that the plaintiff was the one doing most of the payments for the household needs including home improvements. The only dispute in this regard was the source of the money used by plaintiff to pay for these needs. The plaintiff said it was from her earnings whilst the defendant contended that as he worked outside town he would give plaintiff money to pay for the needs and improvements to the property.

It is further common cause that both parties were employed as civil servants for a greater part of the marriage. In fact the defendant retired in 2002 on grounds of ill health whilst the plaintiff is still employed as a teacher.

The plaintiff testified that when defendant took out the mortgage bond they had agreed that she would be giving him some money to cushion him. In addition she would pay for home improvements and other needs of the family whilst the defendant serviced the loan. It was her evidence that this is what happened hence most of the home improvement receipts were paid for from her income.

It was her evidence that the defendant deserted the matrimonial home in 1993 and never returned. The parties have thus been on separation since that year. After he left home the loan continued to be serviced from his salary but that is all he did. All other expenses including providing for children’s needs both at school and otherwise were met by the plaintiff.

The defendant’s version on the other hand was to the effect that he left the matrimonial home in 2006 and not in 1993. Unfortunately this only came up in his viva voce evidence in court. In his pleadings he had not specifically denied that he left in 1993. It would appear this was a belated denial for reasons best known to defendant. It was clearly an afterthought. I am inclined to agree with plaintiff that defendant left home in about 1993.

It was not disputed that as of 1993 some of the children were minors and these had to be fended for by the plaintiff without the defendant’s contribution. In fact the last born was born in 1993.

The plaintiff also gave evidence to the effect that she did not know where the defendant stayed. Initially when he left she was made to understand he had gone to live with another woman in Chiweshe. The defendant never bothered to tell her of his whereabouts. The defendant did not specifically deny this. He in fact confirmed that the plaintiff did not know where he resided.

 It was in these circumstances that plaintiff refuted defendant’s contention that since retiring he has been living at his parents’ rural home. She somehow believes he has deliberately concealed from her what he has been doing for a living since retirement in order to incapacitate her from making any claim outside the matrimonial house.

It is as a result of all this that the plaintiff asked for the house to be awarded to her in toto.

The defendant on the other hand asked for a 50:50 share of the house. He stated that the basis for seeking a 50: 50 share was that, firstly, he is the one who bought the house and secondly, the Matrimonial Causes Act enjoins spouses to share assets. It was his evidence that apart from paying the purchase price he also made direct contributions towards home improvements. He admitted that the payments for home improvements were made by plaintiff but contended that he gave the plaintiff the money for her to make the payments as he was working outside town.

It is apparent that defendant’s contention hinged on his direct contribution.

The distribution and apportionment of assets of the spouses at the dissolution of a marriage is governed by s 7 of the Matrimonial Causes Act, [chapter 5:13].  Section 7 (1) thereof 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:

1. The division, apportionment or distribution of assets of the spouses, including an order that any asset be transferred from one spouse to the other;”

Section 7(4) states that:

“In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case,.. ..”.

 Some of the factors are listed in s 7(4) (a)-(g).

            The subsection concludes by stating the principle purpose in considering all the circumstances by stating that:

“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.”

The listed factors are broad guidelines and are not exhaustive. Court is given wide discretion in the distribution and apportionment of assets of the spouses. As aptly noted by Gillespie J in Shenje v Shenje 2001(2) ZLR 160(H) at 163E-F:

“In deciding what is reasonable, practical and just in any division, the court is enjoined to have regard to all the circumstances of the case. A number of more important, and more usual, circumstances are listed in the subsection. The list is not complete. It is not possible to give a complete list of all possible relevant factors. The decision as to a property division order is an exercise of judicial discretion, based on all relevant factors, aimed at achieving a reasonable, practical and just division which secures for each party the advantage they can fairly expect from having been married to one another, and avoids the disadvantages, to the extent they are not inevitable, of becoming divorced.”

An analysis of the factors shows that the first four factors pertain to the needs of the parties rather than their dues. The fifth deals with the direct and indirect contributions by the parties. The sixth is on the consequences for the divorce on the parties and children regarding their expectations had the marriage continued and lastly the need to consider the duration of the marriage

Needs and expectations of the parties.

From the evidence adduced it was common cause that the plaintiff is aged about 57 years and the defendant is about 67 years old. The defendant retired in 2002 due to ill health whilst the plaintiff has continued with employment to this date. She is however due for retirement in about 8 years’ time. In terms of financial resources the plaintiff was quite clear that her income is from employment. She augmented that income by engaging in cross border trading. She has no valuable assets of her own. Since the acquisition of this home she has been resident there and that is the only home she has known. During the subsistence of the marriage she has contributed towards its improvements. Since the defendant deserted the home in 1993 she has been solely responsible for the care and maintenance of the home. She has been paying rates and other levies and bills. In addition she has been solely responsible for the maintenance of the parties’ children, seeing to it that their school needs were met. As far as she is concerned the defendant virtually abandoned the home and the family.

Having taken care of the home and children single handed for the last 22 years the plaintiff argued that she deserved to be awarded the house. She is the one in greater need of the house than the defendant. In this regard she alluded to the fact that the defendant appeared to be comfortable staying where ever he was since he never sought to come back to the matrimonial home.

The plaintiff expressed her doubts on the defendant’s assertion that he has no other home hence he is staying in a hut at his parents’ rural home in Plumtree.

As regards future financial needs and expectations, the plaintiff’s evidence was to the effect that she will need to continue maintaining the house and providing for two of the parties’ children. She alleged that the second last born has a psychiatric problem and so even though he is an adult she has to look after him. She however did not tender any medical evidence of the mental state/condition of that child. The parties’ last born child is attending tertiary education and so still needs her financial support.

The plaintiff gave her evidence well. She clearly has sacrificed for the family in terms of providing for the children to a stage whereby they are now adults. She has also taken care of the matrimonial house without the defendant’s assistance for a long time. She has virtually expended her lifelong earnings on the home and family needs.

The defendant did not deny that since leaving the matrimonial home he virtually turned his back on the family. His contention that he was now only earning little pension is no justification for not providing even moral support. In any case I am of the view that he left the matrimonial home before retirement in 1993 as testified to by the plaintiff. Clearly the defendant simply decided to be irresponsible. Having retired on medical grounds he was expected to get some terminal benefits which he could have utilised for the family but, alas, he never made any mention of any significant payment on termination of employment on health grounds serve for the $200 monthly payments.

The defendant in my view was not candid with court regarding the income he has been receiving since retirement. He also has been secretive about any activities he may have been engaged in even to his wife. As was confirmed by both parties the plaintiff did not know where the defendant was residing. Clearly such conduct on behalf of the defendant was unbecoming and reminiscent of someone who had something to hide. Whatever he had to hide did not do him any favour at all.

It is common cause the purchase price was paid for by the defendant and the property is in his name. It is however not disputed that the plaintiff made significant indirect contributions in maintaining the home for 22 years in defendant’s absence. What parties could not agree on is whether the plaintiff made direct contributions towards home improvements or the money came from the defendant. After hearing evidence from the parties and seeing documents tendered I am inclined to believe the plaintiff’s version. In my view she was a more credible witness than the defendant. The defendant’s contention that he was working outside town hence he gave money to the plaintiff to pay is not supported by his complete abandonment of the family in 1993.

I am of the view that though the parties emphasised on their respective contributions as a basis for their claims, the circumstances of this case do not warrant giving a lot of weight to contributions. The aspect of the needs and expectations of the parties must outweigh their supposed contributions.

This is a marriage that subsisted for 36 years albeit 22 years of which they were on separation. The duration of the marriage makes a mockery of the desire to rely on the direct contributions towards the purchase price. Clearly a lot has happened to the property and so the fact of the defendant having been the one to pay the purchase price will not be of great significance.

From the evidence adduced and the circumstances of the case it would appear that each party was comfortable in the lifestyle they were leading separate from each other. The defendant seems to have adjusted well to living away from the matrimonial home. His life after divorce will thus not be affected much by the manner of distribution of the property. He clearly has not been dependant on the property for a long time. It would appear his desire for a share in the house is motivated by the fact that he is the one who paid the purchase price and so he cannot be deprived a share thereof. The plaintiff on the other hand has been dependant on the property for shelter and she is the one to be mostly affected by any order of distribution that this court may grant. It is her standard of life that will be adversely affected by the disposal of the property in any way.

My assessment of the needs of the parties is such that the plaintiff deserves a greater share than the defendant. She has been at the house for her married life tendering the property on her own and thus has more attachment to it than the defendant. She is likely to be rendered homeless if her share is such that she is unable to buy out the defendant or to buy another property of her own. The defendant, as already alluded to, seems comfortably catered for wherever he is living and so there is no fear of him being homeless.

In an endeavour to provide a just and equitable share to the parties I am of the view that a 70% share for plaintiff with the defendant retaining 30% share would be just. The plaintiff will be granted the option to buy out the defendant failure of which the property will be sold by an agent appointed by the Registrar of the High Court. It is my view that should the plaintiff fail to pay out the defendant and the property is sold, a 70% share of the net proceeds should be adequate for the plaintiff to secure another property for herself.

The plaintiff in her evidence had asked for about 12 months within which to buy out the defendant. Such a period is reasonable in the circumstances of this case.

Accordingly it is ordered that:

1. A decree of divorce be and is hereby granted
2. Each party shall retain the movable property in his or her custody as his or her sole and exclusive property.
3. The plaintiff be and is hereby awarded a 70% share in the matrimonial property namely Stand 1476 Mabelreign Township also known as No. 15 Ifield Close, Mabelreign, Harare with defendant being awarded a 30% share of the said property.
4. The parities shall agree on a valuator within 30 days from the date of this order failing which one shall be appointed for them by the Registrar of the High Court from his list of valuators.
5. The cost of valuation shall be met by the parties in equal shares.
6. The plaintiff is hereby granted the option to buy out defendant of his share within twelve (12) months from the date of receipt of the valuation report.
7. Should the plaintiff fail to pay out defendant within the 12 months or any longer time as the parties may agree, the property shall be sold to best advantage by an estate agent appointed by the Registrar from his list of such agents.
8. The net proceeds, after the deduction of all attendant costs, shall be shared in the ratio of 70:30 with plaintiff being given 70% of the net proceeds.
9. Each party shall bear their own costs of suit.

F. G. Gijima and Associates, plaintiff’s legal practitioners

Legal Aid Directorate, defendant’s legal practitioners