Mary Mashaike Chitenje (née Chitendera) v Abraham Chitenje

### Preamble
1
HH 381-13
HC 6632/12
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MARY MASHAIKE CHITENJE   (NEE CHITENDERA)

versus

ABRAHAM CHITENJE

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE, 9, 10, 20 September, and 31 October 2013.

Civil Trial

T. Mutebere, for the plaintiff

E. Nyambuya, for the defendant.

UCHENA J:   The plaintiff and the defendant customarily married each other in 1981. They registered their customary union in July 1983. They both started off working in Gweru, after which the defendant left Government service, to work for the Cotton Marketing Board. They were blessed with three children who are all majors, but their eldest child Nyasha, is mentally handicapped and will according to the Doctor’s report, have to be treated as a perpetual minor.

The parties have agreed on all other issues except the distribution of their matrimonial home No 7 Kingfisher in Borrowdale and the custody and maintenance of Nyasha.

No 7 Kingfisher Road was purchased by the defendant from funds he got from the pension, he got when he left Government service and proceeds from the sale of the Gweru house he had bought before he married the plaintiff. He sold the Gweru house and bought a flat he later sold to buy a Marlbrough house jointly with his cousin. These purchases were meant to preserve the value of the Gweru house, which he eventually used to develop No 7 Kingfisher Road Borrowdale when he sold the Marlbrough house. This demonstrates good planning and a desire to provide an up market home for his family.

Though the parties had agreed, at their pre-trial conference that their marriage had irretrievably broken down, the defendant kept on going back to his hoping that their marriage can be saved if the plaintiff gave him a chance. He kept on repeating his desire to keep his family together. The plaintiff is clearly not interested in the continuation of the marriage. This is one of those cases where the court has to grant a decree of divorce when one of the spouses feels it is not all over, as there is no hope of the plaintiff and the defendant reconciling. See the case of Kumirai v Kumirai 2006(1) ZLR 134 (H) at p 136 B-D.

The plaintiff was a school teacher when she married the defendant. She said she contributed indirectly from the time they got married. She bought food for the family, paid school fees for their children and took care of the children, while the defendant concentrated on building the house at No 7 Kingfisher. Though the defendant disputed that she contributed in the manner she said she did, I find it difficult to believe, that a working spouse could have left him to take care of all the family expenses. If she was that selfish the defendant would not have been pleading for the continuation of their marriage. I therefore find that the plaintiff contributed indirectly towards the purchase of and developments at No 7 King Fisher Borrowdale.

The defendant offered her 20 % of the value of the house. She wants a 50% share of the value of the house. I accept that the defendant’s contribution, is higher than the plaintiff’s  as he ploughed into the matrimonial home his pension and proceeds from the house he bought before he married the plaintiff. They have however been married for over 30 years, which fact should increase her share of the matrimonial home. After all factors have been taken into consideration I am satisfied that the plaintiff should be awarded a 40% share of the matrimonial home.

The issue of the 32 year old Nyasha whose mental health makes him a perpetual minor, calls for a determination on which parent should have his custody and what contributions the none custodial parent should make towards his upkeep. The plaintiff told the court that the defendant does not care for Nyasha as demonstrated by his not knowing the name of Nyasha’s current Doctor. The defendant told the court that he used to take Nyasha to doctors when he still had a car. He is no longer able to do so as he and Nyasha are now the plaintiff’s dependants whose health is sponsored by the plaintiff’s medical aid. He told the court that the plaintiff is working and has a motor vehicle which she does not want him to use. He therefore was not taking Nyasha to Doctors as the plaintiff whose medical aid is being used and is mobile was taking care of that responsibility. I am satisfied by the defendant’s explanation. That decision is supported by the plaintiff conceding that the defendant cooks for Nyasha and supervises his taking of medication when she is away at work. This tends to confirm that he cares for Nyasha’s welfare but is limited as to what he can currently do for him by lack of means. He is a pensioner aged 60. He earns a pension of US$100-00 per month and is only able to withdraw US$ 97-00 per month. The plaintiff admitted, that she is employed as a Teacher by Celebration Church earning a net salary of US$ 1100-00 per month. She owns a car in which she drives Nyasha to Doctors. She also admitted that the defendant and Nyasha are on her medical aid scheme. This seems to be the advantage she seems to have been using against the defendant to get an upper hand over Nyasha’s welfare. If the issue of means is removed the defendant would in my view be the ideal custodian parent for Nyasha.  Nyasha is a grown up man but for the metal retardation. He should be taken care of by another male. The plaintiff says she sleeps in the same bedroom with Nyasha. That should not be encouraged. A mother should not sleep in the same room with her grown up son even if he is mentally retarded.

I therefore find that Nyasha should be placed in the defendant’s custody. The plaintiff is employed and financially able to contribute towards Nyasha’s maintenance. She should contribute towards Nyasha’s maintenance in the sum of US$200-00 per month and keep him on her medical aid scheme.

In the result I make the following order;

A decree of divorce be and is hereby granted.

The Matrimonial Home No 7 Kingfisher Borrowadale shall be sold and the proceeds be shared at the rate of 40% for the plaintiff and 60% for the defendant.

The parties shall agree on the appointment of a Valuer and Estate Agent whose fees they shall contribute at the rate of their shares. The Valuer and Estate Agent shall be appointed within 30 days of this order and he shall sale the matrimonial home, to the best advantage of the parties within three months of the date of his appointment.

The custody of Nyasha Chitenje is awarded to the defendant. The plaintiff shall have access to him every alternate week end and every alternate public holiday.

The plaintiff shall pay maintenance to the defendant for Nyasha’s maintenance, in the sum of US$200-00 per month.

The plaintiff shall keep Nyasha as a beneficiary of her medical aid scheme.

Each party shall bear his or her own costs.

Govere Law Chambers, plaintiff’s, legal practitioners

Hamunakwadi, Nyandoro and Nyambuya, defendant’s legal practitioners