It all started out well for the couple when they married 40 years ago. But things changed dramatically.
After 17 years together, the man ‘deserted the matrimonial home’ and they have not lived together since then. Some years ago, he made two starts at divorce, but when it became clear that the wife would file a counter claim the man ‘developed cold feet’, said Harare high court judge Alphas Chitakunye.
Finally, in 2016, the husband got serious about divorce, and gave some anodyne reasons as grounds, such as that they had lost affection for each other.
So far, apart from there having been two ‘false starts’ to this divorce, there might seem little to distinguish it from many other divorce matters. But there was a twist, in the form of a dispute over the house in which the woman lived.
The man said this was the only immovable property ‘currently owned by the parties’ and proposed that it should be ‘distributed equally’ between them.
The wife – who needs to be congratulated for a spunky defence of her rights – told the court she did not agree to this. While she agreed they should divorce, the grounds she gave for why the marriage had broken down were rather different than his. Her husband had ‘frequently associated improperly with a number of women’. He had infected her with a sexual transmitted disease ‘including the incurable herpes’. He had spent large sums of money on his mistresses, ‘while his family went unprovided for’. He deserted the wife and their family when the children were still minors and at a time when the wife was in hospital, completely immobile after a motor accident. He had abandoned his responsibilities for school fees and maintenance of their minor children.
Then she claimed yet more perfidious behaviour on his part. At the time of his desertion, the couple had actually owned two properties. Apart from the house in which they had both lived, there was a house bought for the benefit of their children.
Some time after he left the family she discovered, quite accidentally, that he had sold the second property, without informing or consulting her, and that he had kept the proceeds. In the wife’s view, the court should award the matrimonial home to her ‘as her sole and exclusive property’.
Judge Chitakunye quoted a previous decision in which the court had held it would be an error to conclude that the respective contributions of the parties in a divorce was the crucial factor for a judge to consider. In fact the needs of the parties were crucial, rather than what they believed they were due as recompense.
It was also imperative for the spouses to disclose all assets regardless of when they were acquired. In this case, both parties were employed for most of their married life, he as an ‘executive’ and she as a ‘secretary’. The second property had been bought in the man’s name, using funds that came indirectly from wedding presents, but it was clear that it was to have been an investment for their children. That aim, however, was defeated by the man when he sold it and kept the proceeds for himself.
When he left, the bond on the matrimonial home was not paid up. Though he claimed to have sent money to the wife and for ‘some of the children’s needs’, the documentation he put up to court did not show that this had happened. Instead, during the entire time after he left the family, the wife had taken care of the property, She had used most of her salary for bond repayments, and had eventually made it fully paid it up.
The judge said the woman’s contributions to the bond repayments were ‘immense’ and that for 20 years she had maintained the property on her own. She had paid a key role in providing for the children during the years when the husband ‘was virtually out of the picture and making progress in his career’. Though he did very well in his life yet he ‘found no time or resources for his family.’
He had also ‘not been candid’ with the court about his income over the last 20 years, nor about the assets he might have acquired during that time, nor about any investment he may have made. ‘The lack of full and frank disclosure cannot work in his favour’ and it was ‘improper’ not to disclose assets owned ‘on the pretext that it was acquired after separation’. Under cross-examination the man admitted that he had indeed ‘acquired other properties’, but he refused to give any information about them to the court. While he seemed to believe that properties acquired after separation could not be considered by the court after separation, ‘this was obviously wrong,’ said the judge, adding that the man had no one to blame for the fact that an inference ‘may rightly be drawn that he indeed has other properties to his name’.
He had sold the second property without consulting or informing his wife and had used the proceeds for his own benefit.
Evidence given by the man indicated that he expected to be economically active for another 10 – 15 years, during which it was ‘apparent that he will continue receiving substantial income and that the dissolution of the marriage will not affect such income at all.’
Given his financial status, he had no ‘need’ for a share in the matrimonial property. The wife, however, would be forced to retire later this year and would thus lose her source of income. The loss of the house would have devastating consequences on her, but not on the husband.
The judge therefore ruled that the woman she get the matrimonial home as her sole and exclusive property. The man was to sign all the necessary documents to enable his share to be transferred to her within 30 days. If he failed to do so, the sheriff was directed to sign instead of the husband.
Judgments in divorce actions are not often the stuff of news nor are they even usually of interest to other judges, but in the context of ensuring fairness to the woman, here the far more vulnerable party, this decision is worth reading.
In particular the judge’s comments on the need for full disclosure are significant, along with his clear disapproval of the husband’s apparent belief that property acquired after separation would not be considered by the court. So too is his stress on the court’s interest not being to ensure the parties ‘recoup’ their investments, but rather to consider and, if possible, provide for their future needs.
Given the facts of this case it would clearly have been most unjust for the court not to have awarded the property to the woman. But stranger things have happened, and so it is worth noting and commending this decision.