Alvis Harry v Cherron Magdelene Phillips

### Preamble
1
HH 183-18
HC 11357/16
---------


ALVIS HARRY

versus

CHERRON MAGDELENE PHILLIPS

IN THE HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 22 November 2017, 13 November 2017, 23 November 2017 and 29 March 2018

Civil Trial

T Muganhiri, for the plaintiff

M H Bhaureni, for the defendant

MWAYERA J: This is a matrimonial matter which was dragged to court clearly because of counsels not balancing the ethical duty of taking instructions from clients, being duty bound to the fellow legal practitioner and being genuine with the court. The plaintiff’s counsel mainly insisted on the matter being referred to trial regardless of there being no contentious issues.  Instead of helping parties reason on the obvious maintenance obligations and quantum thereto the lawyers seemed desirous of having their day in court. The couple married for about 12 years found themselves at court seeking divorce and ancillary issues.

The plaintiff issued summons and subsequent pleadings and the defendant also filed pleadings thereto. At pre-trial conference the parties agreed on irretrievable breakdown, custody access and proprietary rights. The only issue referred to trial pertains to maintenance. The issues referred to trial can be summarised as follows;

What amount should the plaintiff pay as maintenance for the minor children.

What amount is defendant entitled to as maintenance and for what period.

There are common cause aspects worth noting. The plaintiff is employed as a pilot. At the time of trial he was employed by Qatar Airline, Airways earning QAR 3,950 per month which per the conversion rate agreed by the legal practitioner was $6 757.67 per month. The plaintiff was responsible for paying school fees for the minor children of the couple through payment from his employer. It is not in contention that the children are at boarding school and are weekly borders.

The plaintiff offered to contribute a total of $300 for maintenance of the three minor children. The proposed maintenance was to be broken down as follows, $80 for each of the male children and $140.00 for the female child. It is also not in dispute that the defendant since marriage had never been formally employed but undertook some family projects. That the plaintiff maintained the defendant and the three minor children is not in dispute as the parties agreed.

The plaintiff would send between $1500 and $3000 every month. The plaintiff’s evidence was fairly straight forward as he made it clear he was responsible for the upkeep and maintenance of his family. The point of departure was simply on quantum of maintenance.

It was apparent from the defendant’s testimony that she was responsible for the day to day care of the minor children. The defendant, although not formally employed had done courses in beauty therapy and had been involved in some projects to raise money, although these had failed. She at the time of trial was employed earning $250 per month. The defendant just like the plaintiff outlined her expected monthly expenses. It was apparent that the defendant stayed at a big property which required services of a gardener and house maid. She appreciated that upon divorce she would not be maintained by the plaintiff for an indefinite period. She thus requested for maintenance for herself for a year till she secured a steady job and established herself so as to maintain herself. It was clear since the children were weekly borders she would spend the weekend with the children and contribute in their welfare by taking care of the children. It is worth noting that the plaintiff has incurred a debt which he is servicing. However, the plaintiff was economical with the exact debt and amount due as evidenced by failure to avail current bank statements. It is however, a fact that the couple was living a high class type of life and that the debts incurred were serviced through the plaintiff’s salary which cannot, in the economic environment be described as not handsome.

It is settled in dealing with divorce and children issues the court has to endeavour as far as it is practically possible to place the spouse and children in a position they would have been in had the marriage subsisted.

This is for the obvious reason that a more or less same standard of life has to be maintained in order to absorb the trauma that goes with divorce. The best interests of children are of paramount importance hence in considering a matter that concerns children such as custody, access and  maintenance the best interest of the children have to be central. It is not the children  divorcing but the parents. The children are an innocent component naturally affected by the divorce of their parents and this requires to be cushioned when it comes to their welfare. The parties seeking divorce even by consent as in this case seek to do away with their relationship as husband and wife but certainly they cannot wish away their  relationship as father and mother of their children. In addition to the duty of care towards each other which spouses have during and after marriage as espoused in the constitution the parents have an obligation and duty of care towards the welfare of their children.

Section 26 and s 81 of the Constitution respectively are clear. Section 26  (c) and (d) of the Constitution of Zimbabwe Amendment (No. 20) states

“The state must take appropriate measures to ensure that-

(c) there is equality of rights and obligations of spouses during marriage and at its dissolution

and

(d) in the event of dissolution of a marriage, whether through death or divorce provision is made for the necessary protection of any children and spouses.” (underlining my emphasis)

Section 81 outlines most of children’s rights and among them is the right to protection and

parental care. Section 81 (1) (d) is apposite it reads “Every child, that is to say every boy and girl under the age of eighteen years has the right to family care, parental care, or to appropriate care when removed from the family environment.”

In casu the parents are seeking divorce by consent, as such the children will be removed from family environment and their maintenance has to be a wholesome package which cushions their entire welfare. Factors which fall for consideration in coming up with a realistic package for maintenance include the best interest of the children, the general standard of living of the responsible parents or person including their social status.

The means of the responsible person, the number of persons the responsible person is legally obliged to support and the genuine needs of the responsible person. Both the plaintiff and defendant are legally liable to contribute to the maintenance of their children. Where one considers the two’s means it is clear that the plaintiff has means to provide the financial needs while the defendant has means to provide the moral support and day to day needs of the children given her proximity to them and the fact that the parties agreed that she be custodian parent.

The boarding and tuition fees can be paid directly to the school by the plaintiff. Medical Aid and medical expenses as well can be catered for by the plaintiff. It is appreciated the children are weekly borders. The claim for over $2000 monthly maintenance for the 3 children will not be justified and equally the offer of $300 monthly maintenance for the day to day needs is not realistic. This is more so when one considers the means of the plaintiff, the standard of life the children are accustomed to and the best interests of the children.

Maintenance is a continuing obligation which can be varied upwards or downwards depending with the needs. I agree with the plaintiff’s observation that the girl child would require more maintenance for upkeep than the male child to cater for gender difference. The children will require clothing, food, bedding toiletries to mention but a few items. Being in boarding would not translate to slashing their provisions at home. Given the plaintiff and defendant’s social standing, the means available and the desire to maintain the spouse and children in the same position they would have been in had the marriage subsisted, and it is my considered view that for the day to day needs of the children total maintenance of $1000 being $300 per month each for the male children and $400 for the female child is appropriate.

As regards spousal maintenance it is clear that the defendant is a young woman though not used to being formally employed is quite capable of engaging in self-help activities to sustain herself. She has for the past 12 years been maintained together with the children to the tune of $1 500 - $3000 per month. Further she has been provided with accommodation. An abrupt fall from that standard of living would occasion hardship which would encroach on the children’s welfare given the defendant is to be the custodian parent. I by no means wish to encourage laziness and dependence syndrome on the part of an able bodied young adult. This is moreso given the notion of equality between men and women. I subscribe to the sentiments echoed by MAnyarara JA in Chiomba v Chiomba 1992 (2) ZLR 188 when he stated:

“Today courts are no longer prepared to award maintenance to a young woman who has been working before marriage and can be expected again after divorce at least if there are no young children …….”

In this case the defendant is young and capable of working. I am not oblivious to the

fact that in casu there are young children. The plaintiff will be ordered to shoulder the maintenance of the children inclusive of provision of accommodation. The defendant cannot be accorded indefinite maintenance given her age.

At least she requires maintenance and upkeep which can be termed rehabilitative maintenance to cushion her while she adjusts from being a married woman dependent on her husband for maintenance to being a single mother. A reasonable quantum of maintenance and not an outrageous amount of maintenance is called. The defendant adjusted her claim to $300 per month for a period of 1 year that in my view is reasonable maintenance.

Given the means of the plaintiff and having considered that the defendant and children require maintenance a total figure of $1300 per month for the children and their mother will cushion the needs of the defendant and children.

It is also abundantly clear that the plaintiff is better placed to support the defendant as far as legal costs are concerned. In the manner provided for by the law the plaintiff ought to assist the defendant with litigation fees. Accordingly it is ordered that:

A decree of divorce be and is hereby granted.

The defendant be and is hereby awarded custody of the three minor children of the couple, namely:

Alvis Lee Joshua Harry, born on the 12th June 2006

Malachi Lee Harry, born on the 4th of December 2007

Anehiea Eva Lee Harry, born on the 6th of June 2010

The plaintiff shall have access to the 3 minor children for 2weeks of every school holidays by arrangement of the parties at the plaintiff’s expense.

The plaintiff shall maintain the 3 minor children as follows:

By provision of accommodation

Paying school fees and tuition fees for the 3 children before commencement of each term till each of the children attain their first tertiary qualification or become self-supporting whichever occurs first.

Maintain the children on full medical and dental aid and pay medical expenses till the children become self-supporting.

By paying total maintenance of $1000 per month for the 3 children being $300 per month for each of the male children and $400 for the female child.

The plaintiff shall pay post-divorce spousal maintenance to the defendant at the rate of $300 per month for a period of 1 year from the date of order.

Each party is to keep the movable assets in their possession as at date of the order.

The plaintiff shall bear the costs of suit on an ordinary scale.

Machaya & Associates, plaintiff’s legal practitioners

Chivore & Partners, defendant’s legal practitioners