Wells Marowa v Emelda Marowa

### Preamble
1
HMT 18-22
HC 70/21
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WELLS MAROWA

and

EMELDA MAROWA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 12 and 19 May 2022

Civil Trial

Ms S. Muzandaka, for the Plaintiff

Defendant in person

MUZENDA J: Plaintiff married defendant at Mutare in terms of the Marriage Act, [Chapter 5:11] on 30 August 1994. On 13 June 2017 he caused summons for divorce and ancillary issues to be issued. There are no minor children. Parties agree that the marriage relationship between them has irretrievably broken down to an extent that there is no hope of restoration of a normal relationship. During the duration of the marriage the parties acquired an immovable property being Stand 5216 Zimta Park, Mutare. The parties have agreed that in the event of a decree of divorce being granted by this court the parties will share the immovable property in equal shares of 50 percent cash. Defendant claims rehabilitative maintenance for at least a period of two years.

On 25 January 2019 at Mutare parties agreed at a joint pre-trial conference that the following issues are for trial.

That who between plaintiff and defendant should be granted first option to buy out the other’s 50 percent share of the immovable property that is No. 5216 Chikanga 3, Mutare?

Within which period should the party granted the first option to buy out the other, pay the amount due and in which currency should the amount be paid in?

Whether defendant is entitled to rehabilitative maintenance for a period of two years if at all?

These three issues are those for trial.

Evidence adduced by the plaintiff

Plaintiff, Mr Wells Marowa testified. He is a retired teacher and earns ZWL$13 000 and US$80 per month as pension. He pays rent US$50 and spends US$30 towards food and grocery. In January 2022 he applied for a loan of ZWL$20 000 to raise money for fees and will finish repayments by June 2022. He cannot afford to pay defendant rehabilitative maintenance because his income per month is meagre and in any case he is of the view that defendant is capable of looking after herself.

Plaintiff added that he will be amenable to be bought out by the defendant. As such the defendant should be afforded the first option to buy plaintiff out but given his health condition and advanced age, defendant must exercise her rights within a period of six months from the date of the order. The value of the house was unanimously agreed to be one as per the evaluation report, which is US$12 000. Under cross examination by the defendant, plaintiff rejected defendant’s counter-proposal that she be given between five to eight years to buy out the plaintiff. Plaintiff is able to buy out defendant at once in full in United States Dollars.

Defendant’s evidence

Defendant told the court that she is a fruit and vegetable vendor and earns a net of US$50 after deducting monthly overheads and upkeep. She later added that she is a member of a social club and gets US$100 per month to make a total of US$150. She further told the court that she can get help from her married daughter to pay off the plaintiff but would require a period of at least five to eight years to offset the plaintiff’s portion. She will not be able to pay the amount at once but will liquidate it in instalments. On the other hand she said she is not willing to vacate the house because she is emotionally and sentimentally attached to it. She is so bitter that plaintiff is staying with another woman and if plaintiff sells the matrimonial house, he is going to give his share to his new wife.

On rehabilitative maintenance for a period of two years, defendant told the court that she is plaintiff’s wife and plaintiff should maintain her. Under cross-examination by plaintiff’s counsel, she failed to explain why she did not claim maintenance during the marriage. She also failed to apply for lump sum maintenance when plaintiff retired. All along she had been legally represented but did not assert her maintenance rights. On one occasion she alleged that plaintiff has no money. She also conceded that she periodically gets support from her children who can even assist her to buy out plaintiff.

Disposition

It is clear that the marriage between the parties has irretrievably broken down and both parties agree. As a result, a decree of divorce is granted by consent.

On the defendant’s claim for rehabilitative maintenance for a period of two years, defendant has failed to prove on a balance of probabilities that she is in need of maintenance. In any case plaintiff’s evidence on his monthly income went largely unchallenged that he no longer earns much as a pensioner. I will therefore dismiss defendant’s claim for rehabilitative maintenance.

It is common cause further that parties agreed to share the matrimonial immovable property at 50 percent The dispute was all along that who should be given first option to buy one out. When the trial commenced, plaintiff indicated in his opening address that he was now giving defendant that first option which she has to exercise within a period of six months where after in the event that she fails, plaintiff will buy her out in a single payment within a period of a week or two. Defendant rejected that proposal and said she needed eight years to pay out the plaintiff. Later, she went down to five years or even four years to do so.

When parties divorce there is a lot of emotional outbursts, more particularly when the other party feels that a spouse has since remarried. Parties will never be able to live as they used to do. Each has to restart on a fresh page and move on with life. The house of course has a sentimental value to both parties, however defendant is still in the house and plaintiff is now a tenant. He wishes to pay a house or stand and prepare for his future as well. Defendant does not have any problems, she is in occupation. Plaintiff is aged 58 years and defendant 52 years old, obviously plaintiff is of an advanced age and urgently needs the proceeds to acquire a new stand and develop it. A period of eight years, five years or even four years is too long a time to wait. Defendant has no savings as of now and using her estimated income of US$150 per month, if that money is put on reserve she will be able to save US$1 800 per year and it will take 3⅓ years to pay out US$6 000, which is the 50 percent of US$12 000.

I am more persuaded by the plaintiff that if the defendant fails to exercise her option within a period of 6 months, plaintiff be given chance to buy out the defendant. The plaintiff seems to be reasonable in the circumstances so as to allow parties to move on with their lives.

Accordingly the following order is granted:

That a decree of divorce be and is hereby granted.

That defendant’s claim for rehabilitative maintenance be and is hereby dismissed.

That plaintiff is awarded 50 percent of the immovable property being certain piece of land situate in the District of Umtali called Stand No. 5216 Chikanga 3, Mutare also known as 5216 Zimta Park and that defendant gets the residual 50 percent of the same property.

That defendant be and is hereby granted first option to buy out the plaintiff’s 50 percent of the matrimonial property described in paragraph (c) above, and that defendant has to exercise her rights to buy out plaintiff within a period of six months from the date of service of this order on defendant and defendant has to pay plaintiff in full and final settlement.

In the event of defendant failing to buy out plaintiff in terms of paragraph (d) above, plaintiff shall pay defendant her share at the expiry of six months as herein provided and shall do so within a period of a month.

The payments of the 50 percent buyout shall be made in United States Dollars free of interest.

Each party to pay its own costs.

Mugadza Chinzamba, plaintiff’s legal practitioners