Angeline Usaiwevu v Thomas Usaiwevu

The parties were married on 18 September 1976 under general law and had three children who had all reached majority. The plaintiff sued for divorce and ancillary relief on 15 August 2003, obtaining default judgment on 18 December 2003. The defendant successfully applied for rescission of judgment regarding division of matrimonial assets only, which was then referred to trial. The parties entered into a deed of settlement resolving most issues, leaving only one dispute: whether the defendant was entitled to a share of property at 41 Station Street, Chegutu, registered solely in the plaintiff's name under deed of transfer 6146/89 on 20 June 1989. The plaintiff claimed she purchased the property for $20,000 without the defendant's contribution, while the defendant claimed he contributed substantially by selling his house at 19 Skies, 30 cattle, Barclays shares and insurance policies to finance both the matrimonial home (17 Concession Hill Road) and the disputed property, both purchased from Mrs Elizabeth Mula Williams. The parties also jointly acquired the matrimonial home, registered in their joint names on 25 August 1989.

• Whether property registered in one spouse's name during the subsistence of marriage constitutes matrimonial property subject to division under the Matrimonial Causes Act
• Whether the defendant made contributions toward acquisition of the disputed property despite it being registered solely in the plaintiff's name
• What constitutes an appropriate division of the disputed matrimonial property
• Assessment of credibility where the case depends on one party's word against the other

The court ordered: (1) an order in terms of the deed of settlement dated 19 September 2006; (2) the defendant awarded a half share of the monetary value of 41 Station Street, Chegutu; (3) both properties to be valued by an agreed estate agent within 14 days, failing which the President of the Estate Agents Council to appoint a Chartered Valuer; (4) the plaintiff to pay the defendant half the monetary value within 45 days of the valuation report against transfer of the defendant's 50% share; (5) if the plaintiff fails to pay within 45 days, the defendant has the option to purchase the plaintiff's 50% share within 45 days, failing which the properties may be sold with net proceeds shared equally; (6) valuation costs to be borne equally; (7) each party to pay its own costs.

Property acquired during the subsistence of a marriage constitutes matrimonial property subject to division under the Matrimonial Causes Act [Chapter 5:13], regardless of whether it is registered in the name of one spouse only. Where parties have made similar contributions to the acquisition of matrimonial property (including being employed with similar earnings at the time of acquisition) and where they have agreed to equal division of similarly acquired property, there is no basis for treating other jointly acquired property differently, and an equal division is appropriate. A party cannot benefit from conduct where they have held themselves out as being in a normal married relationship for an extended period and then claim the marriage had broken down earlier when it becomes financially advantageous to do so.

The court observed that the plaintiff's claim that she continued to financially support the defendant and buy him businesses for 14 years after the marriage had allegedly collapsed "sounds like an excerpt borrowed from a book of fiction." The court noted that if a party has misled the other party and the world at large through their conduct and behavior for a substantial period (14 years in this case), they are "stuck with it" and "cannot be allowed to blow both hot and cold." The court also noted, though did not need to resolve, a dispute about customary practices forbidding sexual intercourse after the birth of a child.

This case is significant in Zimbabwean matrimonial law as it demonstrates the principle that property acquired during the subsistence of a marriage constitutes matrimonial property subject to division under the Matrimonial Causes Act, regardless of which spouse's name appears on the title deed. The case reinforces the importance of examining the substance of contributions rather than mere formalities of registration. It also illustrates how courts assess credibility in matrimonial disputes where evidence depends on conflicting testimonies, and the principle that a spouse cannot benefit from misleading conduct by holding themselves out as married for years and then claiming otherwise when it becomes financially advantageous. The judgment emphasizes that equal division may be appropriate where both parties made similar contributions, even when legal title is held by only one spouse.