Lynet Makuvaro (Nee Mundirwa) v Makuvaro (246 of 2024) [2024] ZWHHC 246 (20 June 2024)

1 HH 246-24 HCH 3696/22 LYNET MAKUVARO (NEE MUNDIRWA) and SPENCER MAKUVARO HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 6 February 2024 & 20 June 2024 Civil Trial L K Chiarangwa & T Nyamidzi, for the Plaintiff A Munyewende, for the Defendant MAXWELL J: The Plaintiff and Defendant were married on 21 February 2008 in terms of the then Marriage Act [Chapter 5:11] now the Marriages Act [Chapter 5:17]. The marriage was blessed with two minor children born in 2007 and 2012 respectively. On 3 June 2022 Plaintiff issued out summons for a decree of divorce and ancillary relief. Plaintiff alleged that the marriage had broken down irretrievably and there are no prospects of restoring a normal marriage relationship. She also submitted that during the subsistence of the marriage, the parties acquired movable and immovable property. She proposed how the property should be shared. She also proposed that she be awarded custody of the minor children with Defendant having access. She also proposed that Defendant pays maintenance for the children in the sum of $1000.00 per month. Defendant gave notice of entering appearance to defend. In his plea he did not take issue with the submission that their marriage had broken down irretrievably. He counter- proposed the sharing of the property. He also proposed that rentals from one immovable property be used as maintenance for the minor children. The parties held a Pre-Trial Conference and the following issues were proposed for trial. 1. Whether or not the marriage between the parties has irretrievably broken down to the extent that there are no prospects of restoration of a normal marriage. 2. Whether or not Plaintiff is entitled to a share of the movable property and immovable property as claimed in the summons. HH 246-24 HCH 3696/22 3. What constitutes the parties' matrimonial assets and what would be a fair and equitable sharing ratio thereof. 4. Whether or not the Plaintiff is entitled to the maintenance of the minor children in the amount of US$1000.00 per month. When the parties appeared for Pre-Trial Conference before a judge, most of the issues were agreed upon. Only one issue was referred to trial, whether or not Plaintiff’s 50% share in a Bluffhill property can be interfered with. The property in question is registered in the names of both parties. Plaintiff’s position was that she should be awarded a 50% share whilst Defendant’s view was that Plaintiff should get 15%. TRIAL The Plaintiff testified to the following effect. The parties were married since 2007. She moved out in 2023. She confirmed that they agreed on all other issues except the sharing of the property in Bluffhill. The property was acquired through a mortgage from Stanbic Bank where Defendant was working. They moved into the house in 2004 before they were married. At the time she was employed at Delta. The house was acquired at a cost of about $360 million Zimbabwean Dollars. It was in a bad state. The floor carpets were worn out. It did not have tiles in the bathroom. They did the tiling, sunk a borehole, and did the driveway. She solely contributed to the renovations. The Defendant transferred to Standard Bank in South Africa in 2008. When he moved to South Africa, she remained maintaining the property. He came back in 2020. He had taken a voluntary retirement package in 2018. Currently, his source of income is the rental from two cottages at the Bluffhill property which are leased out. The Defendant testified as follows. The property was acquired when Plaintiff was still his girlfriend. The aim was to stay on the property with his family forever. He took a loan which was to be paid back through instalments. The condition of the loan was that he was not supposed to have another property. He had a property in Kuwadzana. When he moved to South Africa in March 2007, he instructed Human Resources to sell the Kuwadzana property and put the value towards the loan. Because of love, he included Plaintiff’s name on the title deed as he anticipated a good marriage. The Plaintiff participated in the renovation of the kitchen. He was offering Plaintiff a 15% share of the property as she did not contribute towards its acquisition. HH 246-24 HCH 3696/22 The 15% share is just a token of appreciating the 16 years of marriage and also the fact that Plaintiff is the mother of his two beautiful children. He confirmed that he considered the house to be matrimonial property and that the family stayed there until 9 April 2022. To him the house has sentimental value as he bought it when they were boyfriend and girlfriend anticipating a long and happy marriage where they would be parted by death. The parties are agreed that there is a rebuttable position that they own the property in equal shares by virtue of it being registered in both their names. Plaintiff referred to Silberberg and Schoeman in The Law of Property 5 ed 2006 @ p 133 where they stated that: “Co-ownership denotes that two or more persons own a thing at the same time in undivided shares.” She also made reference to Takafuma v Takafuma 1994(2) ZLR 163 and Ishemunyoro v Ishemunyoro ORS SC 14/19 where it is emphasized that the registration of rights in immovable property conveys real rights upon those in whose name the property is registered and that no person can successfully challenge the right of ownership against a person whose right is duly and property registered in the Deeds Office. She prayed that she be awarded a 50% share in the property. Defendant, on the other hand, argued that there are factors rebutting the presumption of equal shares in the property. He referred to the case of Kwedza v Kwedza SC 73/14 where it was stated that the question to be answered is whether the justice of the case requires that a spouse’s share be awarded to the other and how much of that share it is to be. He also referred to Lafontant v Kennedy SC 103/2000 wherein it is stated that where property was paid for by one party but registered in joint names, the party who did not pay the purchase price is a nominee for convenience. Further, the institution of action proceedings in such a case is a termination of that nomination. A question arises as to whether or not there is a basis for taking a share of Plaintiff’s half- share to give to Defendant. In my view, there is a basis for doing so. As stated in Ncube v Ncube SC 6/93 only in exceptional circumstances does a spouse benefit from assets to which she has not contributed money or money’s worth. In Takafuma v Takafuma (supra) it is stated that the court should start from the position that each of the parties is entitled to a half share of a property registered in both parties’ names. Thereafter an adjustment must be made to take account of the fact that one party has invested certain sums of money on the property. The court took into HH 246-24 HCH 3696/22 account the fact that the husband had paid off the full purchase price which should have been paid jointly. It held that he was entitled to claim as a deduction to the wife’s half share half of the payments made towards the purchase of the house as well as the other costs he had incurred in improving the house. It also awarded him interest. In casu, it is not in dispute that the purchase price was paid by the Defendant alone. Plaintiff did not contribute in any way to the purchase price. Defendant is therefore entitled to claim a deduction of half the purchase price from Plaintiff’s share. The Plaintiff indicated that she was involved in the renovation of the house, tiling, sinking a borehole, and constructing a driveway. The Defendant indicated that at the time of the renovations, he was still employed by Standard Bank and contributed to the renovation as well. No figures were submitted on what each party contributed. I therefore find that both parties contributed equally to the renovations and no deduction from each party’s share is warranted. Plaintiff submitted invoices from St Ignatious College and Cornelius Hope Academy as proof that she bore the burden of the children’s school fees. In addition, she was responsible for the maintenance of the property from the period 2008 to 2020 when Defendant was in South Africa. That is a period of twelve years. I have also considered that though the parties were legally married in 2008, Plaintiff’s evidence that they moved into the property in 2004 was not controverted. In addition, the birth of their first child in December 2007 is evidence of their cohabiting before the solemnization of the marriage. In my view, Plaintiff is entitled to more than the 15% share offered by Defendant. A 30% share would meet the justice of the case. Defendant sought to argue that the house has sentimental value to him and therefore section 7(3)(c) of the Matrimonial Causes Act [Chapter 5:13] is applicable. The said section prohibits the court from exercising its power to divide, apportion, or distribute any asset that is proved to the satisfaction of the court, to have been acquired by a spouse before or during the marriage and which has a particular sentimental value to the spouse concerned. He argued that how he acquired the property gives it sentimental value. He, however, did not ask the court to apply section 7(3)(c) of the Matrimonial Causes Act [Chapter 5:13]. Had he done so, his prayer ought to have been that the property is not available for division, apportionment, or distribution. The fact that he offered a 15% share is testimony that he was not convinced that the property fits in HH 246-24 HCH 3696/22 the category of those with a sentimental value to make section 7(3)(c) of the Matrimonial Causes Act [Chapter 5:13] applicable. I find that the property is not of such sentimental value as to be excluded from division, apportionment, or distribution. DISPOSITION 1. A decree of divorce be and is hereby granted. 2. Plaintiff be and is hereby awarded 30% of the immovable property namely 1 Ringway Close, Bluffhill Township 3 Harare. 3. Defendant be and is hereby awarded 70% of the immovable property namely 1 Ringway Close, Bluffhill Township 3, Harare. IT IS ORDERED BY CONSENT THAT 4. Custody of the minor children namely X, born on 8 December 2007, and Y born on 9 August 2012 be and is hereby awarded to the Plaintiff. 5. Issues of maintenance, access, and the sharing of all other assets shall be governed by the Parties Agreement. 6. Each party shall bear its own costs. Muvingi & Mugadza, Plaintiff’s legal practitioners J Mambara & Partners, Defendant’s legal practitioners