Samuel Chirombe v Beatrice Chirombe (Nee Mutanho)

### Preamble
1
HH 591-25
HCH 7992/23
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SAMUEL CHIROMBE

versus

BEAUTRICE CHIROMBE (Nee Mutanho)

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 13 & 26 March & 1 October 2025

(Matrimonial Action)

F Siyawareva, for the plaintiff
A Debwe, for the defendant

TSANGA J: The parties herein contracted a civil marriage in 2002. The parties agree that the marriage has irretrievably broken down. As they come to a conclusion that their journey as a married couple is up, they have some common ground but also some differences on what constitutes fairness in dealing with the proprietary consequences on divorce.

Their marriage was blessed with four children and the two are still minors. They agree that custody of the two minor children, born in 2008 and 2015, should be granted to the defendant, with the plaintiff enjoying access to the minor children during alternate school holidays and public holidays. The minor children are in boarding school. The parties agree that the plaintiff, their father will meet all the children’s fees and school needs, and medical aid requirements and will contribute US$30.00 per minor child as the children. On movables, the parties agree that each should keep what is already in their possession.

What they do not agree on is the sharing of some of the immovable properties or assets acquired during their marriage, which they listed as constituting the following:

1. Stand 10573, Cooper Chadwick, Southerton, Harare, which is the present matrimonial home in plaintiff’s name

2. Stand 10279, Stoneridge Park, Harare, with a house partly constructed and registered in plaintiff’s name.

3. Stand 1741, Sally Mugabe, Harare, undeveloped stand in plaintiff’s name.

4. An undivided 0,0298% share being Share No. 4111 in certain piece of land situate in the District of Salisbury called Lot J of Borrowdale Estate. (Crowhill Stand, Harare, being an undeveloped stand in plaintiff’s name).

5. Business stand in Buhera, undeveloped stand in plaintiff’s name.

6. Stand 3351 Fidelity, Southview, Harare, undeveloped in defendant’s name.

7. Stand 6379, Budiriro 5B, Harare, former matrimonial home in defendant’s name.

8. Certain Piece of Land situated in the District of Hartley, commonly known as Marshland stand in Norton (Residential stand number yet to be established: stand in  in plaintiff’s name.

There are also two other stands in relatives’ names, described as Stand 13692 in Hatcliff, and a stand in Marlborough.

In his summons, the plaintiff proposed that each party keeps the immovable property already registered in each of their names. The defendant, however, lays claim in her counter claim to four of the above properties in the pool of assets, namely, the current matrimonial home being Stand No. 10573 Cooper Chadwick Road, Southerton, that is in plaintiff’s name; the Crowhill stand in Borrowdale also in plaintiff’s name; a residential stand in Norton again in plaintiff’s name. Only the fourth property in her counterclaim, the Fidelity stand, is already in her own name. As for the Budiriro property in her name, she wants the plaintiff to have that in exchange for, her having the Southerton property. Put simply, asset transfer is what she seeks to level the field upon divorce.

PLAINTIFF’S EVIDENCE

The plaintiff works for the City of Harare as a building inspector. He currently resides at the property known and described as stand 6379, Budiriro 5B, Harare. It is their former matrimonial home where they lived from 2000 to 2014. He then moved back there again in 2018 when he separated from the defendant.

His evidence was that he acquired all the properties in question, including those registered in the defendant’s name, and, that as such, he is entitled to a greater share of the assets. However, he has no objection to her keeping the two assets registered in her name, the Budiriro home and the Fidelity stand and letting her have the Norton stand.

He testified that Stand No. 10573 Cooper Chadwick Road, Southerton, the current matrimonial home where his wife currently resides, ought to be awarded to him. His reasoning was as follows. That property is not only already registered in his name, but he also purchased it through his work pay scheme and as such, it holds sentimental value to him. Moreover, he reasoned that the defendant made no direct contribution towards its acquisition, as she was not employed at the time. He testified that if he retains the Southerton property, he will rent it out in order to raise funds to pay the school fees for all the children. Besides the two minor children, he is also responsible for another child who is still studying medicine in Zambia. He pays 2800 per semester for this child plus US$150.00- $200.00 for living expenses. As for the two minor children one at least US$1,200.00 per term excluding pocket money while the other US$700.00 per term in school fees. The two minors are at boarding school. He also testified that the minor children have been staying at both the Southerton and Budiriro houses. As such, awarding him the Southerton property would not affect their standard of living or familiar environment since the Budiriro property is their former matrimonial home. They lived there up to 2014 when they moved to Southerton. The children also come there during vacations to be with him. Furthermore, the Budiriro property is already in the defendant’s name while Southerton is in his.

DEFENDANT’S EVIDENCE

The defendant’s testimony was that she, instead of plaintiff, should be awarded stand No. 10573 Cooper Chadwick Road, Southerton, the current matrimonial home. This would be in addition to the Crowhill stand in Borrowdale, the Fidelity stand as well as the residential stand in Norton. She acknowledged that her direct financial contribution in the acquisition of these properties was minimal but stated that she had introduced the plaintiff to the concept of investing in shares, which enabled him to acquire these other properties. She had also contributed indirectly by cooking for the builders, doing household chores, and taking care of both the children as well as the plaintiff.

Her reasons for laying claim to the Southerton property were multiple.  For one, she had been blindsided by the request for divorce and her overall preference would have been for the properties to be put into a trust for the benefit of the children.  However, in the face of the plaintiff’s resolute stance against a trust, then this particular property should go to her because it equally holds sentimental value for her too. She moved there in 2014. It is a home that she has become attached to and so have the children. She contributed at least US$800.00 financially to tiling it. She industriously developed its garden. The home has a prayer room since praying is a core aspect of her life with the children.

Further, she testified that she has developed strong social networks in that community whereas the defendant moved back to Budiriro. Moreover, she has been the one responsible for maintaining the Southerton property since the parties’ separation. Since she retains custody of the two minor children by agreement, she motivated that it is in their best interests for the Southerton property to be awarded to her to preserve the standard of living and environment to which the children have become accustomed to since 2014. She submitted that a cumulative consideration of all the above tilts the balance in her favour as far as keeping their current matrimonial home.

As for the other properties she lays claim to, she submitted that they had always accumulated their assets as a family and therefore she is just as equally entitled to them as her husband in whose name they are registered.

ANALYSIS

Among other requirements that are to be considered in the distribution of assets on divorce s7 (1) (a) gives the court discretion to order the division and distribution of assets, which includes transfer of an asset from one spouse to another.

“7 Division of assets and maintenance orders

(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—

(a) 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;”

Also, s 7 (2) allows the court in ensuring that an order operates fairly as between the spouses to:

(a) order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order.

The goal of the provision is fairness in the divorce settlement and the aim is to put each spouse in the position they would have been had the marriage continued. However, an important take away from the discretionary nature of s 7 (1) is that the transference of property from one spouse to another or non-transference for that matter, are both possible valid legal outcome in any given case. This is because discretion, in its essence, entails flexibility of judgement amidst possible equally legal outcomes. The exercise of the court’s discretion under s 7 (1) though is most certainly not to be exercised according to a judge’s whims or fancies as the Act itself in s 7 (4) provides key considerations which the court should take into account in the division of assets between spouses. This is against the backdrop of s7 (1) upon which the court then exercises its discretionary powers. It is therefore worthwhile capturing the thrust of the provision in a given case since it gives the necessary analytical backdrop for reaching any conclusion as to whether it is necessary or not to transfer any assets from one spouse to another.

Section 7 (4) states as follows:

“7 Division of assets and maintenance orders

(4) In making an order in terms of subsection (1) an appropriate court shall 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 and child;

(e) the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for 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 marriage;

(g) the duration of the marriage;

and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relation-ship continued between the spouses.”

Briefly, the outlined considerations help the court to make a fair and judicious decision in the exercise of its discretion.  As put in Takafuma v Takafuma 1994 ZLR (2) 103 (S)

“The duty of the court in terms of s 7 of the Matrimonial Causes Act involves the exercise of a considerable discretion , but it is a discretion which must be exercised judicially.”

I turn now to a consideration of each of the factors outlined as they apply specifically to this case. The plaintiff works for the City of Harare whilst the defendant is a part time lecturer at the Catholic University. Neither placed their earnings before the court, but suffice it to say none is claiming maintenance from the other for themselves. The plaintiff is 56 years old and she is 50 years old. They are both still able bodied and each is able to look after themselves. In other words, their age, physical and mental condition is such that at this point neither needs to lean on the other. Their issue, as they themselves point out, is ultimately about the sharing of assets that were accumulated during their almost 27 years together.

In determining who should get what, I turn to a consideration of the envisaged financial obligations and responsibilities of each. From the evidence led, the plaintiff is undoubtedly the one who will have the sole financial burden post-divorce in the near future. He will be the one responsible, as per their agreement, for the payment of fees for all four children, minors and majors until they complete their education. The medical bills have also been lumbered squarely on his shoulders. The upkeep of the children also rests largely with him. The two minors are in boarding school. It will also be upon his shoulders to ensure that the education of the children is at the level that they have already become accustomed to.

In terms of direct contributions to the acquisition of the assets, it was also not in dispute from the evidence led by both that the financial contributions largely came from him, though defendant had given some money towards buying tiles in particular for the Southerton house. The defendant’s contributions were, for the most part indirect but valuable. She took care of the children, cooked, cleaned and supported her spouse in the manner most wives find themselves saddled with. Cases such as Masiwa v Masiwa 2007 ZLR (1) 167 (S) and Usayi v Usayi ZLR 2003 (1) 684 (S), highlight that such indirect contributions are significant even if difficult to quantify in monetary terms. It is therefore in all the above contexts that the assets of the spouses accumulated during marriage must be looked at.

Drawing on the approach outlined in the Takafuma v Takafuma it is necessary to start by apportioning what each own before doing any balancing act. Their property falls into his and hers.

Turning to the central dispute as to whether the parties should swap homes, the plaintiff’s explanation that the Southerton property needs to generate income is sound, given the clearly demonstrated financial responsibilities that he will have to shoulder in looking after the children. Further, Southerton is a property that is also already in his name.  As was explained in Takafuma v Takafuma title is real and is not a mere formality but is a matter of substance. It conveys real rights. Also, as a property he got under his employer’s scheme, the sentimental value it holds is greater for him than the defendant. Significantly, the defendant would not in any shape or measure be left homeless. She has a home in her name which she also lived in previously for a very long time. She has social networks in that community too. It makes sense for the Southerton property to remain with its registered owner who is the plaintiff just as it makes for the defendant to remain the owner of the Budiriro property. It is not necessary for the parties to swap the Southerton and Budiriro properties. Her standard of living will not be affected as I did not hear her to be saying that the Budiriro property is of inferior standard. The two suburbs in reality are not very far from each other.

In her counter claim lays claims to both Crowhill Stand and Norton Stand given her indirect contributions to the asset acquisitions. Plaintiff on the other hand, is willing to let her have the stand in Norton in addition to the two properties that are already in her name. It is also important in my view to take cognisance of the fact that even those properties that are in her name emanated from the direct financial contributions of the plaintiff. This cannot be ignored. Property is acquired financially. In addition, the marital regime in Zimbabwe is out of community of property albeit the court does do justice between the parties upon divorce. If the  parties had wanted everything split down the middle, the properties would have been in both  names.

Theirs was, however, a lengthy marriage from 1998, over which period assets were accumulated largely through the direct contributions of the plaintiff and the defendant’s indirect contributions. I do think that she should be granted the Norton stand as proposed by the plaintiff. This will result in a fair outcome given that even with rentals, he may still have to dispose of some of the stands in his name to cover educational expenses. It is only fair that he retains the remainder of the property including the Crowhill Stand. The  defendant  did not  proffer any compelling  reason why  she  wanted this  stand  taken from the  plaintiff.

The defendant mentioned two other properties in relatives’ names. I do not see how these should be the subject matter of distribution  as there was no satisfactory evidence led that they were registered in relatives’ names as nominees only. They were not called as witnesses. The parties therefore each get properties as follows given a balanced consideration of the factors outlined in s7 (4) of the Matrimonial Causes Act.

In the result the court makes the following order:

1. A decree of divorce is hereby granted.

2. Custody of the two minor children, Tapiwa Bessing Chirombe (born 6 October 2008) and Tinotenda Chirombe (born 15 April 2010) is hereby by consent granted to the defendant, with the plaintiff exercising access during alternative school holidays and public holidays.

3. The plaintiff shall be responsible for all the minor children’s school fees and school related expenses as well as medical aid and related medical expenses, and,  shall in addition, pay maintenance of US$30 a month for each of the two minor children.

4. The parties shall keep the immovable properties that are registered in their names  with the  exception  of the property in paragraph 5 below.

5. The immovable property described as  a “Certain Piece of Land situated in the District of Hartley, commonly known as Marshland stand in Norton” shall be transferred from the plaintiff to the defendant with the plaintiff meeting the costs of such transfer. The plaintiff shall sign all necessary papers to effect transfer of this Stand into the defendant’s name within 90 days of this order being granted, failing which the Sheriff of the High Court or his Deputy shall be authorised to sign the transfer papers on plaintiff’s behalf.

6. Each party shall pay its own costs.

Tsanga J:………………………………..

James Majatame Attorneys at Law; Plaintiff’s Legal Practitioners
Debwe & Partners; Plaintiff’s Legal Practitioners