GONOVHI versus CHIDAVAENZI (HCH4992/21) [2026] ZWHHC 32 (27 January 2026)

3 HH 69-26 HCH 4992/21 CUTHBERT GONOVHI versus TARISAI CHIDAVAENZI HIGH COURT OF ZIMBABWE **MAXWELL J** HARARE 8 September 2025 & 27 January 2026 **Civil Trial- Property Sharing** _W Madzimbamuto_ , for the Plaintiff Defendant In Person **MAXWELL J:** On 24 September 2021, the plaintiff issued out summons claiming for sharing of matrimonial property based on unjust enrichment. In his declaration, the plaintiff stated the following. He married the defendant under an Unregistered Customary Law Union in 2000. There are two children born out of the union, one is now a major, and the other is a minor. The plaintiff alleged that, between April and May 2019, and at the defendant's rural home in Musana Communal Lands, he gave the defendant ZW$5 as a token of divorce, marking the termination of the customary law union. He further avers that the customary law union broke down due to the adultery by the defendant, who gave birth to a child not fathered by the plaintiff. The plaintiff discovered through blood tests conducted in December 2018, that a child he believed was sired by him was not his, after a period of 19 years of taking care of the child. During the union, the parties maintained a Western lifestyle. He was the sole breadwinner, and he acquired various properties, both movable and immovable. During the subsistence of the union, he was employed at Bitcon Company, earning a stable income. He funded the acquisition of the properties, and the defendant did not contribute anything. He avers that the defendant was a housewife and was not engaged in any income-generating project from which she could have contributed to the family's business or welfare. He would, at times, hire a maid to do all the household chores. During the subsistence of the customary law union, he acquired the movable and immovable assets on his own. He proposed the distribution of the movable properties between himself and the defendant. He further proposed that he keep Number 2468 Glaudina Park, Harare, as his sole property. The defendant entered an appearance to defend and filed her plea to the plaintiff’s claim. She disputed ever receiving a divorce token from the plaintiff. She alleged that the union still subsists. She stated that she never committed any adultery during the subsistence of the union. The defendant submitted that the union had broken down due to loss of love and affection towards each other, and abusive behavior by the plaintiff towards the defendant. She stated that the plaintiff moved out of the matrimonial home on his own volition, and he has tried to evict the defendant from the matrimonial home. She further alleged that the plaintiff never conducted any blood tests on the alleged child. She pointed out that the union between the parties resulted in the birth of the two children. She contended that there is no unjust enrichment as she also contributed financially towards the acquisition of the properties. She stated that she was a housewife as well as a cross-border trader who would also mobilize resources for the acquisition of properties. The defendant alleged that her cross-border activities contributed immensely to the welfare of the family. She further mentioned that the movable and immovable properties were acquired through the joint effort of both parties. She stated that the plaintiff has a Toyota Vigo and a tractor, which he omitted from the list of movables. She proposed that Stand 2468 Glaudina, Harare, be shared equally between the parties or be registered in the names of the children born in the union. On 22 November 2022, the plaintiff filed his replication in which he denied every averment and allegation in the defendant’s plea and joined issues thereon. A pre-trial conference was held. The parties agreed to refer the following issues to trial; 1. Whether or not the High Court has jurisdiction to entertain the matter. 2. Whether or not the Customary union between the parties was formally terminated to justify the relief being sought. 3. What constitutes the matrimonial assets of the parties and the appropriate apportionment thereof. At the hearing of the matter Mr W. Madzimbamuto submitted that all the other issues were settled. Plaintiff offered all the movable properties to the defendant, including the motor vehicle Nissan Serena registration number ACK 3290. The defendant had offered the tractor to the plaintiff. The parties could not agree on two issues. **Issues In Dispute** 1. Whether the defendant contributed financially or otherwise to the acquisition of the immovable property, and if so, whether she is entitled to a 50% share of the immovable property. 2. Whether the motor vehicle, Toyota Vigo registration Number ACO 2029, forms part of the parties' assets? **TRIAL** The Plaintiff’s testimony was that he is no longer married to the defendant, as he gave a divorce token to the defendant’s parents. He stated that he wanted sole ownership of Number 2468, Glaudina Park, Harare. He mentioned that he entered into a mortgage agreement with FBC Bank wherein he acquired Stand 2468 Glaudina, Park, Harare. All the payments were made and are still being made by him. The defendant never made any contribution towards the purchase of the stand and subsequent developments. The defendant was a full-time housewife who was never employed. She did not run any business during the entire period of the union. He pointed out that he was the breadwinner of the family, and he would provide everything for the family. He stated that he acquired all the movable and immovable assets subject to distribution. He mentioned that he solely bought the motor vehicle Nissan Serena Registration Number ACK 3290. He further stated that motor vehicle Vigo ACO 2029 was a company car which was returned to the company in exchange with the Nissan Serena ACK 3290. He agreed to give the Nissan Serena Registration Number ACK 3290 to the defendant. He also stated that there were two cattle, but they died due to disease. He indicated that the tractor should not be shared, as he won it from Farm and City, and it came in his name. The defendant’s evidence was that she contributed directly and indirectly to the acquisition of Stand 2468 Glaudina Park, Harare. She averred that she initiated the process of acquiring the Stand, and the plaintiff took over. She further pointed out that she had been solely paying bills for the house since 2019. She mentioned that she stayed with the plaintiff for many years and they used to do things as a family. She suggested that Stand 2468 Glaudina Park, Harare, be shared equally between herself and the plaintiff. She would travel to South Africa, Botswana and Zambia as a cross-border trader contributing to the welfare of her family. She stated that they agreed to take a loan from FBC bank. She further averred that she purchased basins, tubs, sinks and paint. The defendant stated that she contributed to the acquisition of the Nissan Serena ACK 3290 and Toyota Vigo ACO 2029. She mentioned that they pooled their resources together and she was linked to the bank account, although she was later removed. She stated that there were some cattle. She stated that the tractor in dispute was won at Farm and City and it was brought to the house, thereby becoming part of the matrimonial property. **ANALYSIS** The plaintiff submitted that they were living a Western lifestyle, hence general law applies to this case. In the case of _Mtuda_ v _Ndudzo_ 2000 (1) ZLR 710 the court held that, “The requisites of a tacit universal partnership are: 1. Each of the partners must bring something into the partnership or must bind himself or herself to bring something into it, whether it be money or labour or skill. 2. The business to be carried out should be for the joint benefit of the parties. 3. The object of the business should be to make a profit. 4. The agreement should be a legitimate one. In addition, the intention of the parties to operate a partnership is also an important consideration.” An ordinary marriage relationship does not in itself found a tacit universal partnership. This does not mean that a wife seeking a division of property after divorce is not entitled to make a claim, provided she bases her claim on a suitable cause of action. Where a cause of action is established, the court is entitled to assess the extent of the wife’s contribution and make an order accordingly. In _Mtuda v Ndudzo_ s _upra_ the court reiterated that: “Customary law applies in civil cases were, regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply. It does not apply if the justice of the case otherwise requires. Where the application of customary law would bring injustice, the general law will apply” It is of paramount importance to note that the parties were married in terms of the customary law. Considering that the parties were living a Western lifestyle during the subsistence of their union, the justice of this case requires the application of general law. In the closing submissions, the plaintiff referred to the case of _Nyanhongo_ v _Mamvosha & Anor_ HH416/23 wherein the court laid down that the mere presence or existence of a union is not enough to establish the existence of a tacit universal partnership. Where parties pool their resources for their common good, even if they are not involved in a commercial venture for profit, they are in a universal partnership for their livelihood and the maintenance of their common household. See _Marange_ v _Chiroodza_ 2002(2) ZLR 171. The marriage, being a tacit universal partnership, has no defined expected contribution from each party. The plaintiff submitted that he was the breadwinner of the family and the defendant was a full-time housewife. On the other hand, it was the defendant’s evidence that she was a cross-border trader. She would contribute to the welfare of her family. She stated that, they pooled their resources together for the common good of the family. I believe that a tacit universal partnership existed in this case. The defendant stated that she contributed directly and indirectly to the acquisition of the matrimonial property. She mentioned that she purchased basins, tubs, sinks and paint for the house. She was challenged why she had not brought any documents or evidence to show her contributions. She responded that she did not know that she was supposed to bring the receipts. The Defendant is a self-actor, and it is not surprising that she is not well-versed in the court procedures. The defendant’s evidence shows that she indeed contributed directly and indirectly to the acquisition or improvement of the matrimonial property. The customary law union between the parties was officially terminated, as can be noted from the plaintiff’s evidence that he paid a divorce token of ZW$5 to the defendant at her rural home. It is also a common cause that all the household movable properties and a motor vehicle, Nissan Serena ACK 3290, will be awarded to the defendant as her sole and exclusive property. Further, House Number 2468 Glaudina Park, Harare, was acquired through a mortgage facility secured and guaranteed by the Plaintiff’s employer, and the property is still registered in the name of the FBC Bank as the transfer remains outstanding due to transfer fees required by FBC Bank Lawyers. The tractor was won by the plaintiff at the farm and City promotions. The defendant in her papers did not contest that the same should not be given to the Plaintiff. In the case of _Ntini v Masuku_ 2003 (1) ZLR 634 (H) the court held that: “… for the purpose of dividing property at the dissolution of a marriage, a spouse’s contribution should not be confined only to tangibles but should extend to intangibles where possible. The fact that a woman has married a man should in itself be regarded as a meaningful contribution, as should the fact that she carried out household chores and engaged in other tasks directed at the development or upkeep of the home.” In _Machafa_ v _Makumirwa_ 2001 (2) ZLR 540 the house in question, though it was in the plaintiff’s name, was acquired during the parties’ marriage. It is very clear that the indirect efforts of a customary law wife entitle the wife to be awarded a certain share in the property acquired during the subsistence of the marriage. In _casu_ , the property was acquired during the subsistence of the marriage, and the defendant made some contributions during the construction of the property. I find that the defendant’s significant presence as a wife, mother, and homemaker directly supported the plaintiff’s capacity to acquire the immovable property. To ignore this would be unjust; hence, she is entitled to a share in the property, especially considering the length of the marriage. It has been held that no monetary value can be placed on the indirect contribution made by looking after the home and caring for the family and any other domestic duties. See _Usayi_ v _Usayi_ 2003 (1) ZLR 684. In _Mufunani_ v _Mufunani_ HH 32/16 it was stated that the value of indirect contribution increases with the length of time. It is trite that 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. I am not persuaded that any have been advanced in this case. The parties are therefore entitled to equal shares. **Whether the motor vehicle, Toyota Vigo registration Number ACO 2029, forms part of the parties' assets?** The plaintiff argued that the motor vehicle, Toyota Vigo, Registration Number ACO 2029, does not belong to the parties but was company property, which was returned when he was given the vehicle he is currently using. It was the defendant’s evidence that the motor vehicle forms part of the parties’ assets. She stated that they bought the vehicle from the plaintiff’s company. No proof was produced to show that the motor vehicle in question was sold to the plaintiff by his employer. Further, there is no indication that there was even a change of ownership of the motor vehicle by the plaintiff’s employer as proof that it disposed of the same motor vehicle to the plaintiff. The defendant failed to produce any agreement of sale or any form of confirmation from the plaintiff’s company demonstrating that the vehicle had been sold to the plaintiff. She further failed to provide any evidence of payment made to the company. I am of the view that the motor vehicle does not form part of the parties’ assets. **DISPOSITION** 1. The plaintiff be and is hereby awarded the following; - 1. A 50% share of House Number 2468 Glaudina Park, Harare 2. Tractor Model TT 73, number NH1397175 (blue in colour) 2. The defendant be and is hereby awarded the following;- 1. A motor vehicle, Nissan Serena registration number ACK 3290. 2. All the household properties in the house 3. A 50% share of House Number 2468, Glaudina Park, Harare 3. The property is to be valued by a valuer agreed to by the parties within 30 days of this order. 4. If the parties fail to agree on a valuer, one shall be appointed by the Registrar of the High Court within seven days of such failure. 5. The Plaintiff shall have the option to buy out the Defendant’s share from House Number 2468, Glaudina Park, Harare, within twelve months of the date of receipt of the valuation report or such other time as agreed by the parties. 6. If the Plaintiff fails to buy out the Defendant’s share within the time stated in 5 above, Defendant shall have the option to buy out the Plaintiff’s share from House Number 2468, Glaudina Park, Harare within twelve months of such failure or any other time as agreed by the parties. 7. 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 agreed by the parties, failing which by one appointed by the Registrar of the High Court, and the net proceeds therefrom are to be shared equally between the parties. 8. Each party bears its own costs. MAXWELL J………………………………………….. _Kajokoto & Company_, plaintiff’s legal practitioners