Alastair Walter Pollock Smith v Abigail Rosalynn Smith

The plaintiff and defendant were married on 5 October 1991 in Bulawayo and had one son who reached majority. The plaintiff, a medical doctor earning an average of US$12,913.81 per month (2015) and US$10,868.00 per month (January-March 2016), sued for divorce. The defendant did not oppose the divorce but sought post-divorce maintenance of US$3,000 per month for life. The parties reached agreement on distribution of assets, including selling the matrimonial home and using proceeds to purchase a house registered in the defendant's and their son's names. The plaintiff had been maintaining the defendant at US$3,000 per month and offered to continue for one year only post-divorce, arguing she should work. The defendant suffered from multiple severe medical conditions including haemoptysis, pulmonary emboli requiring lifelong anticoagulation, chronic sensory polyneuropathy, bilateral carpal tunnel syndrome, type 2 diabetes, chronic lumbar spinal spondylodysthesis, and severe oedema. Medical evidence from Dr. Gunning confirmed she could not stand for long periods and that occupations requiring standing would be extremely difficult or impossible. She had stopped running her beautician business in 2003 due to ill health. The plaintiff's own conduct acknowledged her condition, including arranging special assistance for her at airports.

• Whether a former spouse is entitled to post-divorce maintenance for life or only for a limited period
• Whether a spouse with severe medical conditions preventing employment is entitled to permanent maintenance
• What quantum of maintenance is reasonable in the circumstances
• Whether potential future income from an unwound estate affects current maintenance obligations
• Whether the principle that marriage is not a 'ticket for life' applies to spouses unable to work due to medical incapacity

1. A decree of divorce was granted. 2. The plaintiff shall maintain the defendant in the sum of US$3,000.00 per month until she dies, remarries or cohabits with another man. 3. The plaintiff shall pay the defendant's costs of suit.

A spouse who is medically incapable of working due to certified medical conditions is entitled to permanent maintenance until death, remarriage or cohabitation with another man, analogous to elderly spouses who are too old to work. The principle that marriage is not a ticket for maintenance for life applies only to able-bodied spouses capable of supporting themselves through employment. Where medical evidence establishes that a spouse cannot work due to health conditions, permanent maintenance is justified. The quantum of maintenance must be assessed based on the paying spouse's actual means and ability to pay, and what constitutes reasonable expenditure for both parties. Speculative future income from unwound estates should not be considered in determining current maintenance obligations, though variation may be sought if circumstances materially change.

The court observed that the plaintiff was insincere in suggesting the defendant could resume her business when he had personal knowledge of her medical condition and had previously arranged special assistance for her mobility. The court noted that if the defendant's means improve from inheritance when her father's estate is wound up, or if the plaintiff's means decrease, or if their son's circumstances change requiring further education expenses, these would be matters for variation applications rather than bars to the current maintenance order. The court also commented that the plaintiff's fear that his means may decrease in future is not a bar to maintaining the defendant at the current rate until that eventuality actually arises.

This case is significant in Zimbabwean family law for establishing that the modern principle that marriage is not a 'ticket for life' maintenance does not apply to spouses genuinely unable to work due to medical incapacity. It extends the principle in Chiomba v Chiomba (1992) (2) ZLR 198 regarding permanent maintenance for elderly spouses beyond working age to include spouses of any age who are medically incapable of working. The case emphasizes that courts must carefully examine medical evidence and the actual circumstances of a spouse's capacity to work, and that a spouse's previous acknowledgment of the other's medical condition is relevant. It clarifies that permanent maintenance (until death, remarriage or cohabitation) is appropriate where medical evidence establishes genuine incapacity to work, regardless of age. The judgment also addresses the treatment of speculative future income and the availability of variation applications if circumstances change.