PATIENCE CHIPO CHIVAKIRE (Nee Mlilo) versus RUNESU CHIVAKIRE

### Preamble
1
HH 682-25
HCHF 2574/25
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PATIENCE CHIPO CHIVAKIRE (Nee Mlilo)

versus

RUNESU CHIVAKIRE

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE 16 May 2025, 19 June & 30 October 2025

Civil Trial

A T Mbotshwa, for the Plaintiff

B Chipupuri, for the Defendant

MAXWELL J:

Background

The plaintiff and the defendant were married on 19 September 2016 under the then Marriage Act [Chapter 5:11] now the Marriages Act [Chapter 5:17]. The marriage still subsists. The marriage was blessed with three minor children. The plaintiff sued out summons claiming a decree of divorce and ancillary relief. In her declaration, she stated that the marriage between the parties has irretrievably broken down such that there are no reasonable prospects of restoration of a normal marriage relationship. She prayed for custody of minor children with the defendant having access during school holidays. She further prayed that, the defendant meets the minor children’s school fees, other school related expenses upon being served with invoices and statements, pays monthly maintenance of US$ 300 per month for each child for the children’s general upkeep until they reach age of majority or when they become self-sustaining.

The plaintiff listed properties acquired during the marriage and she proposed that, she be awarded 50% share of House Number 95 Cary Street Rhodene Masvingo, commercial project sitting in a stand at Bhuka Shopping area under Nemamwa Rural District Council, Toyota Hilux registration number AGA 6275, Honda Spike sedan, Toyota GD6 single cab registration number AGA 6276, reverse osmosis machine, 1 ice making machine Scotsman, one freezer, 1 55 inch Samsung television, 1 wimpy gold mine claim, 160 inch television set, leather sofa, lounge and kitchen curtains, 8 seater table and chairs, coffee table, 2 double beds, all kitchen utensils, microwave, Honda generator, Changfer generator, 1 boat, 3 Jojo tanks, invetor 5kva, 10 seater lounge suite at  Bhuka.

She further proposed that the defendant be awarded  50% share in house number 95 Cary Street Rhodene Masvingo, all the properties in Victoria Range Masvingo, Land rover defender 130 registration number AEY 4107, Toyota Hilux single cab registration number AGH 1714, one ice making machine scortsman, 4 freezers, one 55 inch Samsung television set, 5 plate touch cooker and oven, bed in main bedroom, portable generator, 1 wimpy gold mine claim, compressor, hammermill, tractor, dumper, 1 boat, 4 Jojo tanks, lithium battery, Gokwe mining claim and Norah mining site.

The defendant requested further particulars to enable him to plead, except and raise any other answers to the plaintiff’s claim. On 1 November 2024, the plaintiff filed her further particulars. The defendant filed his notice of entry of appearance to defend. In his plea, he proposed that he be awarded custody of the minor children , with the plaintiff having reasonable access rights. He further averred that both parties should contribute equally to the minor children’s school fees and other school-related expenses. He proposed that the party required to pay maintenance should pay US $ 100.00 per child until each child attains the age of 18 years or becomes self-supporting. The defendant averred that House Number 95 Cary Street Rhodene, Masvingo is registered in his name alone and it was acquired before he married the plaintiff. He contended that the stand at Bhuka Shopping area under Nemamwa Rural District Council is state land. He mentioned that, the plaintiff exaggerated the value of improvements done at House number 95, Cary Street Rhodene,  Masvingo. The defendant stated that the funds used to get all the stands in Victoria Range Masvingo were sourced before the subsistence of the marriage.

The defendant gave a different proposal on sharing of properties acquired during the subsistence of the marriage. On 11 December 2024, the plaintiff filed her replication. In her replication, she disagreed to all the proposals made by the defendant in his plea.

Joint Pre-Trial Conference

At a  pre-trial conference the parties agreed that:

The marriage has irretrievably broken down, and a decree of divorce is to be granted

The custody of the minor children, namely, Laiza Chloe Chivakire born on 14 October 2016, Simon Maribha Chivakire born on 25 January 2018, and Masimba Allan Chivakire born on 6 March 2020 be awarded to the plaintiff subject to the defendant having right of access to the children twice a month on weekends on either Saturday or Sunday during the day.

The maintenance of the three minor children be governed by the order of the magistrate court under case NO. MSVPMN645/24.

The parties reached an agreement on the division of all the matrimonial properties except the division of House No. 95 Cary Street Rhodene, Masvingo (also known as 1170 Fort Victoria Township of Fort Victoria Township Lands) measuring 2090 square meters held under deed of transfer number 7658/2008.

Issues for determination

What is the just and equitable distribution of the immovable property being  House No. 95 Cary Street Rhodene, Masvingo (also known as 1170 Fort Victoria Township of Fort Victoria Township Lands) measuring 2090 square meters held under deed of transfer number 7658/2008.

TRIAL

The Plaintiff gave the following evidence. She stated that she was the bread winner of the family and she used to send money to the family. She further pointed out that House No. 95 Cary Street Rhodene, Masvingo (also known as 1170 Fort Victoria Township of Fort Victoria Township Lands) was purchased by the defendant in 2008 before their marriage. She mentioned that she considered the said property as their matrimonial home since they stayed there for the duration of their marriage. In support of her evidence, the plaintiff produced a bundle of evidence which was tendered before the court. She averred that, she made significant improvements over the immovable property which was in the region of about thirty thousand pounds. She mentioned that the improvements done on the kitchen alone was worth the sum of US $ 7 800.00. The plaintiff gave evidence to the effect that, she made improvements of the ceiling tiles, brandering, sinks for the toilet, bathroom, new sinks for the kitchen, front Durawall, front elevation, electrical wiring, main bathroom and tiles in the entire house. She averred that she financed all the motor vehicles.

The defendant’s evidence was as follows. He stated that, he acquired the property in question sometime in 2008 before he married the plaintiff. He mentioned that, he purchased the property for the sum of sixty-five thousand United States Dollars. He further pointed out that, he made substantial improvements to the property and it gained value.  He produced a valuation report done in 2013. The defendant acknowledged that, the plaintiff indeed made some renovations at the property in question. He asserted that the improvements done by the plaintiff on the property in question do not equate to a minimum of 20% of the value of the property. The defendant stated that, he was offering a maximum of ten (10) percent of the value of the property. He later changed to no offer, alleging that the property value had gone down from USD 105 000.00 to USD 95 000.0.

ANALYSIS AND THE LAW

The law relating to sharing of assets of the spouses is set out in section 7 of the Matrimonial Causes Act [Chapter 5:13], (the Act). Section 7 (1) of the Matrimonial Causes Act provides that: -

“(1)	Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to

the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;

the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.”

The concept “the assets of the spouses” was defined in Gonye v Gonye 2009 (1) ZLR 39 (S) as clearly intended to have assets owned by the spouses individually (his/hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such asset. In subsection 4 of section 7 of the Matrimonial Causes Act, the Court is enjoined to have regard to all the circumstances of the case, including the following-

“(a) the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

(d) the age and physical and mental condition of each spouse to the family and any other domestic duties;

(e) the direct and indirect contribution made by each spouse to the family and any other domestic duties;

(f) the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the of the marriage;

(g) the duration of the marriage; …”

It was not in contention that the property in question was purchased by the defendant before he married the plaintiff and it is registered in the name of the defendant. It is the defendant’s averment that the property falls out of the ambit of the matrimonial assets and falls within the category of being of sentimental value. In the case of Chikuni v Mavhiyo HH21/2020 the court reiterated that:

“The term ‘assets of the spouses’ has been construed to include all such property or assets belonging to a spouse at the time of the dissolution of the marriage. Such assets may belong to spouses in their individual capacity or jointly owned. The assets may have been acquired before or during the marriage. What is of importance is that the asset must belong to one or both spouses at the dissolution of the marriage.”

In the case of Mutizhe v Mutizhe HH483-18 the court reiterates that:

“Applying the same rationale that assets to be considered are those owned by the parties individually or jointly at the time of dissolution of the marriage, it is appropriate to say that the Mabvazuva property though acquired before marriage has to be considered in the distribution of the assets. Though plaintiff made effort to say that it was acquired during his previous marriage, no evidence of such marriage was tendered. There was also no evidence that the property was an inheritance or fell within the exceptions in s 7 (3) of the Act. The property is surely available for distribution.”

In casu, the plaintiff did not dispute that House No. 95 Cary Street Rhodene, Masvingo (also known as 1170 Fort Victoria Township of Fort Victoria Township Lands) was acquired before their marriage. It was the plaintiff’s evidence that she regarded the property in question as her matrimonial house and she even went on to do improvements on the property. The defendant alleged that he regarded the property as of sentimental value since he acquired it before he married the plaintiff. The evidence presented by the parties clearly shows that the property in question was acquired before the party’s marriage.As endorsed in Shonhayi Denhere v Mutsa Denhere (Nee Marange) SC51/17, and originally expressed in Watchel v Watchel [1973] 1 All ER 829 (CA) at page 842, “in all these cases it is necessary at the end to view the situation and see if the proposals meet the justice of the case.”

In casu, it does not meet the justice of the case, for the plaintiff to walk away empty handed from a marriage of about ten years. Upon consideration of the direct and indirect contributions by the plaintiff on the property, the duration of the marriage, her role to the marriage as a bread winner, taking care of the family, it is the court’s finding that House No. 95 Cary Street Rhodene, Masvingo (also known as 1170 Fort Victoria Township of Fort Victoria Township Lands) is available for distribution and the plaintiff is entitled to a share. In Mutizhe (nee Fuwe) supra a wife who made no financial contribution but;

“… contributed in her own way to the success of the marriage for that period. Not only was she a provider of a homely environment but she also took care of the couple’s children and provided comfort to Plaintiff for 20 years of the marriage was awarded 35% share of the property”

The plaintiff produced a bundle of documents, the bulk of which are bank statements from a bank known as ‘tide’ and other money transfer agents. The defendant in his evidence challenged the admissibility of the said documents stating that they were not originals and they were not duly authenticated. The plaintiff stated that the named bank does not stamp bank statements. In terms of Rule 85(2) of the High Court Rules, 2021;

“(2) Any document executed in any place outside Zimbabwe shall be deemed to be sufficiently authenticated for the purpose of production or use in any court or tribunal in Zimbabwe or for the purpose of production or lodging in any public office in Zimbabwe if it is duly authenticated at such foreign place by the signature and seal of office-

of a notary public, mayor or person holding judicial office…”

It is the court’s finding that the said documents are inadmissible because they fall short of the requirements provided for in Rule 85 (2) of the High Court Rules, 2021. Although the documents by the plaintiff are inadmissible, this does not mean that she did not contribute anything to this property. The plaintiff indeed made direct and indirect contributions towards this property which warrants her to get a share in the property.

It was the defendant’s evidence that he also made substantial improvements to the property and it gained value as indicated by the valuation report which was produced as evidence, done in 2013. The parties relied on a valuation report that was done by the defendant in 2013 after he had made renovations on the said property which valuations led to the increase of the value of the property from sixty-five thousand United States Dollars to one hundred and fifteen thousand United States Dollars. The Plaintiff conducted a valuation and produced a report which actually showed that the value of the property has actually gone down by ten thousand United States Dollars. As a result, the property did not gain in value, but, the value of the property has actually gone down.

It was the plaintiff’s evidence that she made improvements on the property which costed her about twenty thousand pounds. In my view it is just and equitable that, the plaintiff be awarded a 20% share of the property whilst the defendant gets an 80% share.

DISPOSITION

A decree of divorce be and is hereby granted.

Custody of the minor children, Laiza Chloe Chivakire born on 14 October 2016, Simon Maribha Chivakire born on 25 January 2018 and Masimba Allan Chivakire born on 6 March 2020  be and is hereby awarded to the plaintiff.

The defendant shall have access to the minor children Laiza Chloe Chivakire born on 14 October 2016, Simon Maribha Chivakire born on 25 January 2018 and Masimba Allan Chivakire born on 6 March 2020  children twice a month during weekends either on Saturday or Sunday during the day.

Maintenance issues in respect of the minor children, Laiza Chloe Chivakire born on 14 October 2016, Simon Maribha Chivakire born on 25 January 2018 and Masimba Allan Chivakire born on 6 March 2020, shall be governed and regulated by the order of the magistrate court under case NO. MSVPMN645/24.

The plaintiff be and is hereby awarded a 20% share in House No. 95 Cary Street Rhodene, Masvingo (also known as 1170 Fort Victoria Township of Fort Victoria Township Lands), while the defendant gets an 80% share.

R Chibaya Law Chambers, Plaintiff’s Legal Practitioners

Ndlovu and Hwacha, Defendant’s Legal Practitioners