Shadreck Shepherd Mukumba Chaparadza versus Sally Selinah Chamapiwa Chaparadza (Nee Rukweza)

### Preamble
1
HH322-13
HC 1891/10
SHADRECK SHEPHERD MUKUMBA CHAPARADZA
versus
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SHADRECK SHEPHERD MUKUMBA CHAPARADZA
versus
SALLY SELINAH CHAMAPIWA CHAPARADZA (NEE RUKWEZA)

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE October 10, 2013

DIVORCE ACTION

Miss S Moffat for plaintiff
Miss S Ncube for defendant.

CHITAKUNYE J: The plaintiff and defendant started living together as husband and wife in terms of customary law in 1988. On 4 June 1993 their union was solemnised in terms of the Marriages Act [Cap 5:11]. The marriage still subsists.

Their marriage was blessed with two children who are now adults.

On 26 March 2010 plaintiff issued Summons against defendant out of this court seeking:-

A decree of divorce;
Custody of the child who was still a minor; and
The sharing of the parties’ movable and immovable properties.

The plaintiff alleged that the marriage relationship has irretrievably broken down to such an extent that there are no prospects for the restoration of a normal marriage relationship.

The defendant in her plea agreed that the marriage has indeed irretrievably broken down with no reasonable prospects of restoration to normalcy albeit for different reasons to those advanced by plaintiff for the breakdown.

Defendant made a counter-claim in which she claimed for a decree of divorce; maintenance for the children and herself; and an award of the immovable property in her favour.


At a pre-trial conference the parties agreed to the following:-

a) That the marriage relationship between the parties has irretrievably broken down and thus a decree of divorce be granted;

b) That the custody of one minor child of the marriage namely Sasha Mukumba-Chaparadza born on 2nd May 1994 be awarded to the defendant with plaintiff being awarded reasonable rights of access every alternate school holiday and public holiday;

c) That the defendant retains as her sole and exclusive property all movable property acquired during the subsistence of the marriage;

d) That the plaintiff shall pay all the minor child’s school fees, medical expenses and also buy all minor child’s school uniforms;

e) Further that the plaintiff shall pay maintenance of US$30.00 per month for the minor child;

f) The plaintiff shall pay US$30.00 per month to the defendant as money to cover medical expenses;

g) That each party shall bear their own costs.

The only issue the parties failed to agree on and which was thus referred to trial was:-

What would be an equitable sharing for the distribution of the parties’ immovable property known as House Number 470/86 McIntosh Road, Prospect, Hatfield, Harare.

On the date of trial Sasha Mukumba–Chaparadza had turned 18 years and so the issues of Custody, rights of access and maintenance for her were no longer relevant.

The plaintiff gave evidence after which defendant testified also. From the evidence adduced it was apparent that the parties were agreed on plaintiff paying defendant a maintenance sum of US$30.00 per month as agreed at the pre-trial conference. The other relevant aspects of the Deed of settlements were still agreed.

On the issue of irretrievable breakdown of the marriage relationship both parties testified that they no longer had any love or affection towards each other.

The question of whether a marriage relationship has irretrievably broken down or not must be viewed objectively. Section 5(1) of the Matrimonial Causes Act [Cap 5:13] states that:-

“An appropriate court may grant a decree of divorce on the ground of irretrievable break-down of the marriage if it is satisfied that the marriage relationship between the parties has broken down to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between them.”

It is clear from the above that in ascertaining whether a marriage has irretrievably broken down two aspects are central, namely that--i) The relationship is not normal anymore; and

ii) There is no reasonable prospect of the restoration of a normal marriage relationship.

In Kumirai v Kumirai 2006 (1) ZLR13 (H) at p 136B-D MAKARAU J (as she then was) opined that:-

“In view of the fact that the breakdown of a marriage irretrievably, is objectively assessed by the court, invariably, where the plaintiff insists on the day of the trial that he or she is no longer desirous of continuing in the relationship, the court cannot order the parties to remain married even if the defendant still holds some affection for the plaintiff. Evidence by the plaintiff that he or she no longer wished to be bound by the marriage oath, having lost all love and affection for the defendant, has been accepted by this court as evidence of breakdown of the marriage relationship since the promulgation of the Matrimonial Causes Act in 1985.”

In casu, both parties testified to the effect that their marriage has irretrievably broken down. They have both lost all love and affection for each other. Since October 2009 when they separated neither has expressed desire to restore normal marriage relationship. I am satisfied that the marriage has indeed irretrievably broken down and a decree of divorce should be granted.

The parties agreed on all other issues except the distribution of the immovable property. The only contentious issue is thus: - what would be a fair and equitable distribution of the immovable property that is house number 470/86 McIntosh Road, Prospect, Waterfalls, Harare.

From the evidence adduced it is common cause that the property is registered in the defendant’s name. It is agreed that defendant bought the property using her employer’s loan scheme during the subsistence of the marriage. The plaintiff argued that he contributed indirectly by being directly involved in the construction and supervising the builders. Throughout the marriage he was employed and contributing to the needs of the family.

Section 7(4) of the Matrimonial Causes Act provides that:-

“In making an order in terms of subsection (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 that the fact of direct contribution to the purchase of a particular property/asset is not the only consideration to be taken into account. Court is enjoined to consider all the circumstances of the case including indirect contribution as alluded to above.

The weight to be attached to each factor must be such as to endeavour to put 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.”

The pertinent point is that other non financial contributions to the welfare of the family must be appreciated.

In *casu* it is accepted that the immovable property in question is registered in the defendant’s name. By virtue of such registration it may be viewed as her property. The defendant contributed directly to the purchase of this property through her employer’s loan scheme. Plaintiff’s contribution in this regard was indirect as the entire purchase price was paid by defendant through the loan scheme.

Though the parties were not agreed on the periods in which plaintiff was in employment, it is nevertheless clear that plaintiff was also in gainful employment during a substantial part of their marriage. During the subsistence of the marriage plaintiff did contribute to some of the needs of the family. The parties may not have agreed on the quantum and extent of such contribution but I did not hear defendant to say plaintiff never contributed to the needs of the family. It is a question of the extent of such contribution.

It is my view that taking into account the period of their marriage the indirect contribution by plaintiff cannot be ignored.

It may also be noted that as parties are divorcing their needs may differ. Their ability to fend for themselves is heavily compromised by their circumstances. Defendant contented that she can no longer be gainfully employed and so she is averse to losing her lifelong investment. She has a health and physical disability which will make it very difficulty for her to secure employment at her age. There is no doubt that as between the two, defendant contributed the most.

The issue is thus how much should be awarded to each party. Plaintiff claimed a 50% share whilst defendant offered plaintiff a 10% share.

After a careful analysis of the evidence I am of the view that defendant is justified in seeking to retain a greater percentage of the immovable property. The plaintiff’s contributions both direct and indirectly are evidently much lesser than defendant’s. Defendant’s post divorce needs are greater than plaintiff’s. Despite this the 10% offered is rather low. The parties lived together for a long time and shared a lot during that time. It is only proper that plaintiff be granted a reasonable share. A share of 20% taking into account all the circumstances of the case should meet the justice of the case.

The defendant shall be granted the option to buy out plaintiff.

Accordingly it is hereby ordered that:-

1. A decree of divorce be and is hereby granted.
2. The defendant shall retain all the movable property as her sole and exclusive property.
 3. Plaintiff shall pay maintenance to plaintiff in the sum of USD 30.00 per month until defendant remarries or dies whichever first occurs.

4. The plaintiff is hereby awarded a 20% share in the immovable property namely Stand 470 Prospect Township of Stand 86 of Prospect, also known as House number 470-86 McIntosh Road, Prospect, Hatfield, Harare.

5. The defendant is hereby awarded an 80% share in the immovable property described in paragraph 4 above.

6. The defendant is hereby granted the option to buy out the plaintiff in respect of his 20% share.

   i) The parties shall agree on the value of the property within 21 days from the date of this order. If parties fail to so agree they shall within 28 days from the date 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 is hereby directed to appoint an independent evaluator from his panel of evaluators to evaluate the property.

   iii) The costs of the evaluation shall be met by the parties in the ratio 20:80 (as per their shares).

7. The defendant shall pay off plaintiff his 20% share of the net value of the property within six (6) months from the date of receipt of the evaluation report unless the parties agree on a longer period. Should the defendant fail to pay plaintiff his 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 therefrom shall be shared in the ratio 20:80.

8. Each party shall bear their own costs of suit.

*Legal Aid Directorate, plaintiff’s legal practitioners*

*Zimbabwe Women Lawyers Association, defendant’s legal practitioners.*
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