CHIGU v CHIGU (NEE CHIDENGA) (441 of 2025) [2025] ZWHHC 441 (28 July 2025)

1 HH 441-25 HCH 3076/23 CLEVER TINARWO CHIGU versus EVYLINE CHIGU (NEE CHIDENGA) HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 21 May 2025 & 28 July 2025 Trial C Chitsvetu, for the Plaintiff L K Mandota, for the Defendant MAXWELL J: The Plaintiff and Defendant were married on 25 September 2001 under the then Marriage Act [Chapter 5:11] now Marriages Act [Chapter 5:17]. The union was not blessed with any children. On 9 May 2023 the Plaintiff issued out summons claiming a decree of divorce and ancillary relief. He submitted in the declaration that the marriage had irretrievably broken down to an extent that there are no prospects of restoration of a normal marriage relationship between them. He further submitted that during the subsistence of the marriage, the parties acquired one immovable property and some movable assets including a mercedes benz. He proposed that the immovable property be shared equally between the parties and that the movable assets be awarded to the Defendant. Defendant gave notice and entered an appearance to defend. In her plea she pointed out that Plaintiff had not listed two other vehicles, a Nissan NP300 and Toyota Wish. She counter proposed that the immovable property be wholly awarded to her. She counter claimed with her getting the Nissan NP 300 whilst Plaintiff gets the Toyota Wish. She also claimed spousal maintenance of USD 1000 or RTGS equivalent. In answer Plaintiff insisted on equal sharing of the immovable property. He however admitted to having left out the Nissan NP 300 and indicated that it was unintentional. He stated that the Toyota Wish was sold with the Defendant’s knowledge and was now belonging to a third party. The parties exchanged pleadings and a Pre-Trial conference was held. The following issues were referred to trial, HH 441-25 HCH 3076/23 1. Whether the Defendant should be awarded the immovable property, 53 Clyde Road, Eastlea. Harare, or the 50% as offered by the Plaintiff? 2. Whether the Toyota Wish Registration AEY 3904 and the Nissan AFR 4009 form part of the parties matrimonial estate. 3. Whether or not the Defendant should be awarded the movable property NP 300. 4. Whether the Plaintiff should pay spousal maintenance over and above the amount of USD 150, if so, how much, and for how long? Trial At the commencement of the trial counsel for the Plaintiff indicated that the parties met at round table and pre-trial conferences and some issues were dealt with. The parties managed to agree that their marriage had irretrievably broken down and a decree of divorce should be granted. Further that there are two issues for trial, being 1. What properties were acquired by the parties during the subsistence of the marriage and the distribution thereof. 2. The amount of spousal maintenance to be paid by the Plaintiff. The Plaintiff was the first to give evidence. He indicated that the parties acquired one immovable property in 2006. At that time, he was in Italy. He borrowed money from a bank there which he used to buy the property. He repaid the loan monthly. The property was registered in the names of both parties despite the fact that the Defendant did not make any monetary contribution to its acquisition. Plaintiff stated that before acquiring this property the parties were staying in Kuwadzana 5 at a property belonging to the Defendant. He proposed that the immovable property be shared equally between the parties. Plaintiff testified that the parties’ union was blessed with three children who have all reached majority status. He was however still supporting them. The parties also acquired a Nissan NP300 twin cab registration number ABY 1980, Mercedes Benz registration number ABY 5980. He proposed that the Defendant be awarded the Mercedes Benz ABY 5980 that the Nissan NP 300 Aby 1980 be valued and the value be shred equally between them. He pointed out that two other vehicles claimed by the Defendant belong to third parties, a Toyota Wish AEY 3904 belongs to a friend whilst a Nissan NP 300 AFR 7589 belongs to his brother. He stated that though the Nissan NP 300 AFR 7589 was registered in his name, it was his brother who paid for it, both purchase price and customs duty. He disputed acquiring and concealing building material as alleged by the defendant. He submitted that he was not able to pay USD 1000,00 as HH 441-25 HCH 3076/23 spousal maintenance as he was a civil servant earning far below that amount. He produced his payslip as proof of his earnings. He proposed that the Defendant be awarded all the movable assets acquired by the parties. In his view, the defendant was earning more than him through rentals from the immovable properties in Eastlea and Kuwadzana. In addition, he was paying $150 as maintenance. He maintained his position under cross-examination and counsel for the Defendant did not have many questions to ask. Next to testify was Milton Chigu, Plaintiff’s brother. He confirmed that he sent money to the supplier and the Nissan NP300 AFR 7589 for the purchase of the vehicle. Further that it was put in Plaintiff’s name in order to get a discount. He acquired the vehicle in 2021. He lost his wife during the covid pandemic and could not raise funds for change of ownership. Under cross-examination he indicated that he was comfortable with not changing the registration of the vehicle as it was in his brother’s name. That was the Plaintiff’s case. Defendant testified next. She stated that she is a full-time house wife who was a banker before marriage. She had to leave employment to support the Plaintiff in pursuing a diplomatic career. She confirmed owning the Kuwadzana 5 property and indicated that the rentals from that property go towards her ailing stepmother who raised her up from a young age. She stated that on returning from Italy they moved to the Eastlea property. There is however a tenant at the cottage who pays $270,00 per month. She stated that the rentals from the cottage are utilized for maintenance of the house, upkeep of the motor vehicle and other expenses that arise at the household. She proposed that the Eastlea property be put in a trust where the trustees would be herself, Plaintiff and their children. She indicated that selling the property and sharing the proceeds was not acceptable as she stays there with the children. She stated that the Plaintiff inherited a home in Seke. Defendant stated that she was claiming spousal maintenance of USD 1500, 00 after tabulating her expenses based on how the parties have been living. She further stated that the Plaintiff is not of limited means. For that reason, all the children were enrolled at private schools, and Plaintiff pays University fees and transport for the last born. According to her, the university expenses are over USD 5 000, 00. In addition, Plaintiff pays the maid, pays for their daughter’s electricity, Wi-Fi, gas and diesel for the generator. She indicated that she should be awarded the NP300 Nissan as the Mercedes Benz is too old, costly to maintain and always breaks down, Under cross examination she didn’t change her stance, insisting that the Kuwadzana property is not available and should not be taken into account when distribution is done. HH 441-25 HCH 3076/23 Analysis Section 7 (1) of the Matrimonial Causes Act [Chapter 5:13] regulates the division apportionment and distribution of the assets of the spouses on dissolution of marriage. In Usayi (nee Magara) v Usayi SC 22/245 it is stated “The provisions of s7 have been subjected to judicial interpretation in a number of cases. Some of the most recent cases include Mhora v Mhora SC 89/20 where his court stated at p12; It is trite that in matters involving the distribution of property, the Court has to exercise its discretion in deciding what is a just and equitable distribution of the parties property. As a result, a lot of authorities, in construing s7 as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses consequent upon the grant of a decree of divorce. This Court’s view on the discretion of the trial court on the distribution of assets of the parties was aptly stated in the Ncube case, Supra, at p41A where the Court said: ‘the determining of the strict property rights of each spouse in such circumstances involving, as it may, factors that are not easily quantifiable in terms of money, is invariably of theoretical exercise for which the courts are indubitably imbued with wide discretion.’” Slightly earlier than that, the court had extensively discussed the implications of s7 in the Case of Lock v Lock SC 51/20 where at p 8 it said: “The import of the above section was made clear in Gonye (supra) where the following was stated: It is important to note that a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apportionment or distribution of the assets of the spouses in divorce proceedings. The terms used are the “assets of the spouses” and not matrimonial property. It is important to bear in mind the concept used, because the adoption of the concept matrimonial property often leads to the erroneous view that assets acquired by one before marriage or when the parties are separated should be excluded from the division, appointment or distribution exercise. The concept the assets of the spouses is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, appointment or distribution of such asset.” There was only one immovable property acquired by the parties during the subsistance of the marriage. The overarching principle in sharing the assets of the spouses on dissolution of marriage is equality. There has to be compelling reasons for the court to depart from it. Plaintiff advocated for the Court to observe that principle. On the other hand Defendant advocated for departure from that principle on the basis that she would be rendered homeless if the matrimonial property were to be disposed of. This is despite the fact that she concedes owning another immovable property with tenants. Her argument is that the rentals therefrom are directed to the health upkeep of her step mother. I am not persuaded that Plaintiff can be deprived of his half share because Defendant’s step mother must be cared for. HH 441-25 HCH 3076/23 One of the consequences of divorce is the adjustment of life and expenses by the separating parties. In the circumstances of this matter, Defendant can only continue staying at the matrimonial property if she buys out the Plaintiff’s share. Regarding the Toyota Wish Registration Number AEY 3904, Plaintiff’s evidence was that it belongs to his friend. He tendered a registration book showing that the vehicle is registered in the name of Beauty Rudo Tekeshe. Defendant did not produce evidence to the contrary. Neither did she give details of how the motor vehicle was acquired. I therefore find that the Toyota Wish registration number ABY 3904 is not available for distribution. Plaintiff testified that the Nissan AFR 4009 though registered in his name was paid for by his brother. He produced proof that Milton T. Chigu paid $3622, 35 to the Zimbabwe Revenue Authority on 25/6/21 through an internal transfer from an FBC Bank account. In addition, he also produced proof of telegraphic transfer to Singapore of $12 600, 00 by Milton Chigu. Milton Chigu testified and confirmed that he is the owner of the vehicle and that it was not yet registered in his name due to financial challenges. No evidence to the contrary was produced. Accordingly, I find that the Nissan motor vehicle registration Number AFR 4009 is also not available for distribution. The Plaintiff also testified that the parties acquired a Nissan NP300 and a Mercedes Benz C180. He proposed that Defendant be awarded the Mercedes Benz and that the Nissan NP 300 be valued, sold and the value shared equally between the parties. Plaintiff indicated that the mercedes benz is too old and is constantly breaking down. She proposed that she be awarded the Nissan NP300. Defendant is the one staying with the children who are not self – sufficient. The justice of the case demands that she gets the car in a better condition. I therefore find that it is just and equitable that she be awarded the Nissan NP300. However the Mercedes Benz is to be valued and sold and the net proceeds from the sale should be shared equally between the parties. On the issue of spousal maintenance, MWAYERA J (as she then was) had his to say in the case of: Duncan v Duncan HH 232/17 “Post-divorce spousal maintenance is not granted on the mere asking. One has to satisfy the court there is need for the maintenance and that the other spouse is capable of paying as they have the means and that the spouse claiming cannot sustain themselves. ….. Maintenance is not a way of fixing or getting at the other party from a collapsed marital relationship. It is meant for sustaining the other spouse who is incapable of sustaining themselves. The central aspect is what is just and equitable in the circumstances. Again calculated with a view to retain the parties in a position they would have been in had the marriage continued or subsided.” HH 441-25 HCH 3076/23 In her evidence, defendant stated that she is claiming $1 500.00 which she came up with after tabulating expenses basing on how the parties have been living. She stated that the family has been living a lifestyle well above one sustained by a government salary. She further stated that plaintiff would earn more when on diplomatic duty. Plaintiff indicated that he was not able to pay the amount claimed as he is a civil servant earning only $288 in United States of America dollars and Zimbabwe Gold Component. In his plea to the defendant’s claim for maintenance, plaintiff indicated that he could only afford USD150 or the local currency equivalent. In his closing submissions he stated that the defendant has not proved that the existing maintenance order is inadequate. In her closing submissions defendant continued to justify her claim on the basis that the plaintiff earns more during diplomatic duty. It was not established that the plaintiff will be on diplomatic duty for the rest of his career. At the time the matter was heard he was based locally. Furthermore, despite the submission that defendant had not proved that the existing maintenance was not adequate. Defendant did not comment on that in her closing submissions. The fact that in her pleadings she claimed $1 000.00 yet orally she claimed $1 500.00 shows that defendant was just thumb sucking figures. I am not persuaded to grant maintenance above what the plaintiff stated he can afford. Disposition 1. A decree of divorce be and is hereby granted. 2. Each of the parties be and is hereby awarded a 50% share of the immovable property called 53 Clyde Road, Eastlea, Harare. 3. The property is to be valued by a valuer agreed to by the parties within 30 days of this order, failing which one shall be appointed by the Registrar of the High Court within seven days of such failure. 4. The defendant shall have the option to buy out the plaintiff’s share from 53 Clyde Road, Eastlea, Harare, within twelve months from the date of receipt of the valuation report or such other time as agreed by the parties. 5. If the defendant fails to buy out the plaintiff’s share within the time stated in 4 above, the plaintiff shall have the option to buy out the defendant’s share from 53 Clyde Road, Eastlea, Harare within twelve months of such failure or any other time as agreed by the parties. HH 441-25 HCH 3076/23 6. If the parties fail to buy each other out within the stipulated or agreed time, the property is to be sold to the best advantage by an estate agent appointed by the parties failing which by one appointed by the Registrar of the High Court, and the net proceeds therefrom shall be shared equally between the parties. 7. The defendant be and is hereby awarded the Nissan NP300. 8. Each party is awarded a 50% share of the Mercedes Benz. 9. The Mercedes Benz is to be valued and sold by an agent appointed by the parties or if the parties fails to agree, appointed by the Registrar of the High Court. The net proceeds therefrom shall be shared equally between the parties. 10. Plaintiff shall pay one hundred and fifty United States of America dollars (USD150.00) or the equivalent per month or such amount as varied by a court order as spousal maintenance until the defendant remarries or becomes self-sufficient whichever occurs first. 11. Each party shall bear its own costs. MAXWELL J: ………………………………………... Muza & Nyapadi, plaintiff’s legal practitioners Legal Aid Directorate, defendant’s legal practitioners