Theresa Taruvinga v Amos Chandwana [2025] ZWMSVHC 15 (31 January 2025)

3 HMA 03-25 HCMVSUM 44-22 THERESA TARUVINGA versus AMOS CHANDIWANA HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 21 & 31 January 2025 MATRIMONIAL TRIAL Ms I Moyo, for the plaintiff Defendant, in person CHAREWA J: On 10 May 2022, plaintiff issued summons against the defendant claiming an order for divorce and ancillary relief. The defendant filed an appearance to defend and plea and the matter proceeded to pre-trial. At the pre-trial conference and the subsequent pre-trial case management hearing, it was clear that the marriage relationship between the parties had irretrievably broken down and there were no prospects of its restoration. Further, there was no dispute as to the custody, access and maintenance of the minor children of the marriage. The proprietary rights were also largely agreed to, including the sharing ratio for matrimonial home which was agreed at 50:50. SETTLED ISSUES [1] At the commencement of the trial therefore, the parties reiterated that matters of divorce, custody, access, maintenance and proprietary rights other than the period at which the matrimonial home should be shared are not in dispute and may be resolved by the court as agreed as follows: That the marriage relationship has irretrievably broken down to the extent that there was no chance of its restoration and if the court so pleases, divorce may be granted.That the defendant be granted in its entirety, the rural home and the tuckshop that goes with it situated at Chabata Village, Zaka.That the sharing of moveable property has already been agreed with plaintiff being awarded all the property in her possession.That custody of the minor children Amanda Chandiwana born the 13th December 2008, Tashinga Chandiwana born the 24th March 2015 and Samantha Chandiwana born the 22nd October 2017 be awarded to the plaintiff.That defendant shall pay maintenance on their behalf in accordance with the maintenance order in MSVPMN240/23; andThat defendant shall have access rights to the children every weekend, from 0800 on Saturday to 1600 on Sunday during school term, and every alternate school holiday from the first Saturday to the last Friday of the holiday.And finally that the matrimonial home at 26806 Dare St, Mucheke, Masvingo be shared at the rate of 50:50. [2] It is pertinent to note that in his plea, which was never amended, defendant did not seek custody of the children he averred that the matrimonial home mentioned in paragraph 5(g) above should be shared and the proceeds shared equally. DISPUTE [3] Consequently, the only disputes where: Whether, when the matrimonial home at number 26806 Dare St, Mucheke, Masvingo is sold, each party should receive their 50% share (which the plaintiff preferred) immediately upon divorce being granted, or the property should only be sold and proceeds shared after the youngest child turned 18 (which option defendant preferred); andWhether plaintiff should be awarded costs on the scale of legal practitioner and client on account of defendant having unnecessarily protracted the matter by constantly prevaricating and resiling from agreements reached as well as raising issues which were not in his plea. These were the only issues referred to trial. [4] Whether or not the matrimonial property should only be shared after the last child turns 18. a. It was the plaintiff’s view that since the house was jointly acquired by the two parties to the marriage, it is only right that it is shared between the two of them on divorce. Therefore that the parties should divide the rooms between themselves and continue to reside together, each in his/her own rooms, as proposed by defendant, is untenable as defendant has a history of domestic violence towards her as evidenced by the protection order against him. Further, that the house should be shared only after the last child turns 18 is also unacceptable to her as the children are not party to the marriage contract and therefore have no rights to the matrimonial property. In any event, plaintiff, as the custodial parent will make sure her children are not homeless from her share. She therefore prays that the house be evaluated by an independent valuator within three (3) months of the grant of the divorce order, for the parties to have a formal indication of its market value. Further that upon obtaining the market value, the house be sold within 9 months of the valuation report. Should either party not be forthcoming in the sale process the Sheriff should be empowered to act and sign all necessary documents on their behalf. b. On his part, defendant acknowledged that in his plea he had agreed that the house be sold upon divorce and that the proceeds be shared. Agreement not having been reached to the contrary, and his plea remaining un-amended, he acknowledges that his hands are tied in the absence of agreement to his alternative proposals aforementioned However, he avers that he does not agreed to valuation as it is unnecessary and accordingly, the costs thereof should not come from his share. [5] Whether the defendant should be ordered to pay costs on the higher scale. Plaintiff made no submissions on this issue. The court takes it as abandoned. [6] ANALYSIS It is evident from the foregoing that this is a matter which ought to have been settled. A trial was absolutely unnecessary. However, defendant being unrepresented, and the PTC judge having patiently conducted 3 PTC hearings at which all issues were amicably resolved only for the parties, particularly the defendant, to retract, and start the process all over again, it was necessary that he be heard in court and a definitive judgment be given.It is trite that matrimonial property is governed by the marriage contract between the two contracting parties to the marriage, and its division and or sharing has nothing to do with third parties, including the children born out of the marriage. The only rights the children have is to be provided with the amenities of life by their parents. Therefor in the absence of agreement between both spouses, marital property cannot be shared to the children, nor can the sharing between the spouses be delayed by the interests of the children, (unless it is shown that the children will be greatly prejudiced), particularly where such children are under the custody and guardianship of parents who have an obligation to provide for them and have not neglected their duty.In casu, plaintiff testified that, immediately upon their divorce, she wanted the house sold so she receives her share. In his plea, which remains valid and unchanged, defendant stated the same thing. Ergo, there is consensus between the parties that the house should be sold and the proceeds shared immediately upon divorce.Whether it should be valued first is a voluntary position of the plaintiff. Defendant wants no part of that as he is loth to meet the cost thereof. Accordingly, the cost of any valuation will be borne by the plaintiff. [6] Costs of suit In her summons, plaintiff claimed that each party should bear its own costs. And having made no submissions on the claim for higher costs, the court sees no reason to depart from her original position, more so given that defendant is a self-actor and in any event 90% of issues were resolved amicably. [7] All other matters not being contested, the court therefore makes the following order: Disposition IT BE AND IS HEREBY ORDERED THAT: A decree of divorce be and is hereby granted.Custody of the minor children; Amanda Chandiwana born the 13th December 2008, Tashinga Chandiwana born the 24th March 2015 and Samantha Chandiwana born the 22nd October 2017 be and is hereby awarded to the plaintiff.The defendant shall have access to the children every weekend beginning at 0800 on Saturday to 1800 on Sunday, during school term. During school holidays, defendant shall have access to the children every alternate school holiday beginning on the first Saturday after schools close to the last Friday before schools open.The defendant is ordered to pay maintenance for the children in accordance with the existing maintenance order in MSVPMN240/23.Plaintiff be and is hereby awarded the moveable matrimonial property in her custody.Plaintiff be and is hereby awarded sole rights to the matrimonial rural home and tuckshop at Chabata Village, Zaka.The matrimonial home at 26806 Dare St, Mucheke, Masvingo is awarded to the parties in equal shares. The house shall be valued by an independent valuator within three months of the date of this order, at the plaintiff’s cost.The house shall be sold, within 9 months of the date of valuation, to the highest bidder, either by private treaty or by an estate agent agreed and appointed by the parties, from a list of registered estate agents kept by the Estate Agents Council of Zimbabwe. The net proceeds, less necessary costs for conducting the sale and any debts due to the City of Masvingo, shall be apportioned at the rate of 50% each to the parties.In the event that either of the parties fails to sign any document, or fails to do anything required to facilitate the timeous sale of the matrimonial home and sharing of proceeds, the Sheriff for Zimbabwe be and is hereby authorised to sign any necessary documents or do anything required to be done by the parties. There is no order as to costs. Mutendi, Mudisi & Shumba, plaintiff’s legal practitioners 3 HMA 03-25 HCMVSUM 44-22 3 HMA 03-25 HCMVSUM 44-22 THERESA TARUVINGA versus AMOS CHANDIWANA HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 21 & 31 January 2025 MATRIMONIAL TRIAL Ms I Moyo, for the plaintiff Defendant, in person CHAREWA J: On 10 May 2022, plaintiff issued summons against the defendant claiming an order for divorce and ancillary relief. The defendant filed an appearance to defend and plea and the matter proceeded to pre-trial. At the pre-trial conference and the subsequent pre-trial case management hearing, it was clear that the marriage relationship between the parties had irretrievably broken down and there were no prospects of its restoration. Further, there was no dispute as to the custody, access and maintenance of the minor children of the marriage. The proprietary rights were also largely agreed to, including the sharing ratio for matrimonial home which was agreed at 50:50. SETTLED ISSUES [1] At the commencement of the trial therefore, the parties reiterated that matters of divorce, custody, access, maintenance and proprietary rights other than the period at which the matrimonial home should be shared are not in dispute and may be resolved by the court as agreed as follows: That the marriage relationship has irretrievably broken down to the extent that there was no chance of its restoration and if the court so pleases, divorce may be granted. That the defendant be granted in its entirety, the rural home and the tuckshop that goes with it situated at Chabata Village, Zaka. That the sharing of moveable property has already been agreed with plaintiff being awarded all the property in her possession. That custody of the minor children Amanda Chandiwana born the 13th December 2008, Tashinga Chandiwana born the 24th March 2015 and Samantha Chandiwana born the 22nd October 2017 be awarded to the plaintiff. That defendant shall pay maintenance on their behalf in accordance with the maintenance order in MSVPMN240/23; and That defendant shall have access rights to the children every weekend, from 0800 on Saturday to 1600 on Sunday during school term, and every alternate school holiday from the first Saturday to the last Friday of the holiday. And finally that the matrimonial home at 26806 Dare St, Mucheke, Masvingo be shared at the rate of 50:50. [2] It is pertinent to note that in his plea, which was never amended, defendant did not seek custody of the children he averred that the matrimonial home mentioned in paragraph 5(g) above should be shared and the proceeds shared equally. DISPUTE [3] Consequently, the only disputes where: Whether, when the matrimonial home at number 26806 Dare St, Mucheke, Masvingo is sold, each party should receive their 50% share (which the plaintiff preferred) immediately upon divorce being granted, or the property should only be sold and proceeds shared after the youngest child turned 18 (which option defendant preferred); and Whether plaintiff should be awarded costs on the scale of legal practitioner and client on account of defendant having unnecessarily protracted the matter by constantly prevaricating and resiling from agreements reached as well as raising issues which were not in his plea. These were the only issues referred to trial. [4] Whether or not the matrimonial property should only be shared after the last child turns 18. a. It was the plaintiff’s view that since the house was jointly acquired by the two parties to the marriage, it is only right that it is shared between the two of them on divorce. Therefore that the parties should divide the rooms between themselves and continue to reside together, each in his/her own rooms, as proposed by defendant, is untenable as defendant has a history of domestic violence towards her as evidenced by the protection order against him. Further, that the house should be shared only after the last child turns 18 is also unacceptable to her as the children are not party to the marriage contract and therefore have no rights to the matrimonial property. In any event, plaintiff, as the custodial parent will make sure her children are not homeless from her share. She therefore prays that the house be evaluated by an independent valuator within three (3) months of the grant of the divorce order, for the parties to have a formal indication of its market value. Further that upon obtaining the market value, the house be sold within 9 months of the valuation report. Should either party not be forthcoming in the sale process the Sheriff should be empowered to act and sign all necessary documents on their behalf. b. On his part, defendant acknowledged that in his plea he had agreed that the house be sold upon divorce and that the proceeds be shared. Agreement not having been reached to the contrary, and his plea remaining un-amended, he acknowledges that his hands are tied in the absence of agreement to his alternative proposals aforementioned However, he avers that he does not agreed to valuation as it is unnecessary and accordingly, the costs thereof should not come from his share. [5] Whether the defendant should be ordered to pay costs on the higher scale. Plaintiff made no submissions on this issue. The court takes it as abandoned. [6] ANALYSIS It is evident from the foregoing that this is a matter which ought to have been settled. A trial was absolutely unnecessary. However, defendant being unrepresented, and the PTC judge having patiently conducted 3 PTC hearings at which all issues were amicably resolved only for the parties, particularly the defendant, to retract, and start the process all over again, it was necessary that he be heard in court and a definitive judgment be given. It is trite that matrimonial property is governed by the marriage contract between the two contracting parties to the marriage, and its division and or sharing has nothing to do with third parties, including the children born out of the marriage. The only rights the children have is to be provided with the amenities of life by their parents. Therefor in the absence of agreement between both spouses, marital property cannot be shared to the children, nor can the sharing between the spouses be delayed by the interests of the children, (unless it is shown that the children will be greatly prejudiced), particularly where such children are under the custody and guardianship of parents who have an obligation to provide for them and have not neglected their duty. In casu, plaintiff testified that, immediately upon their divorce, she wanted the house sold so she receives her share. In his plea, which remains valid and unchanged, defendant stated the same thing. Ergo, there is consensus between the parties that the house should be sold and the proceeds shared immediately upon divorce. Whether it should be valued first is a voluntary position of the plaintiff. Defendant wants no part of that as he is loth to meet the cost thereof. Accordingly, the cost of any valuation will be borne by the plaintiff. [6] Costs of suit In her summons, plaintiff claimed that each party should bear its own costs. And having made no submissions on the claim for higher costs, the court sees no reason to depart from her original position, more so given that defendant is a self-actor and in any event 90% of issues were resolved amicably. [7] All other matters not being contested, the court therefore makes the following order: Disposition IT BE AND IS HEREBY ORDERED THAT: A decree of divorce be and is hereby granted. Custody of the minor children; Amanda Chandiwana born the 13th December 2008, Tashinga Chandiwana born the 24th March 2015 and Samantha Chandiwana born the 22nd October 2017 be and is hereby awarded to the plaintiff. The defendant shall have access to the children every weekend beginning at 0800 on Saturday to 1800 on Sunday, during school term. During school holidays, defendant shall have access to the children every alternate school holiday beginning on the first Saturday after schools close to the last Friday before schools open. The defendant is ordered to pay maintenance for the children in accordance with the existing maintenance order in MSVPMN240/23. Plaintiff be and is hereby awarded the moveable matrimonial property in her custody. Plaintiff be and is hereby awarded sole rights to the matrimonial rural home and tuckshop at Chabata Village, Zaka. The matrimonial home at 26806 Dare St, Mucheke, Masvingo is awarded to the parties in equal shares. The house shall be valued by an independent valuator within three months of the date of this order, at the plaintiff’s cost. The house shall be sold, within 9 months of the date of valuation, to the highest bidder, either by private treaty or by an estate agent agreed and appointed by the parties, from a list of registered estate agents kept by the Estate Agents Council of Zimbabwe. The net proceeds, less necessary costs for conducting the sale and any debts due to the City of Masvingo, shall be apportioned at the rate of 50% each to the parties. In the event that either of the parties fails to sign any document, or fails to do anything required to facilitate the timeous sale of the matrimonial home and sharing of proceeds, the Sheriff for Zimbabwe be and is hereby authorised to sign any necessary documents or do anything required to be done by the parties. There is no order as to costs. Mutendi, Mudisi & Shumba, plaintiff’s legal practitioners