Bekezela Moyo v Ndumiso Moyo

The plaintiff and defendant were first married in 1996 under the Marriage Act (Chapter 5:11) and had three children. During the marriage they acquired two immovable properties: Stand 72173 Lobengula West, Bulawayo and Stand 14584 Ihlosi Road, Selbourne Park, Bulawayo. The defendant left for the United Kingdom for 15 years, leading to communication breakdown. The plaintiff filed for divorce in 2007, and a decree was granted on 31 July 2008. In that divorce, the plaintiff was awarded the Selbourne property as her sole and exclusive property, while the defendant was awarded the Lobengula property. In 2016, the defendant returned to Zimbabwe and persuaded the plaintiff to remarry. They remarried on 19 January 2016 under the Marriage Act. Problems developed soon after, with the parties never truly living together as husband and wife. The plaintiff filed for divorce on 17 November 2017. The defendant claimed he had contributed to maintenance and upgrading of the Selbourne property and sought a share in it. The plaintiff argued it was her sole and exclusive property from the previous divorce decree.

• Whether immovable property (Stand 14584 Ihlosi Road, Selbourne Park, Bulawayo) awarded to a party as sole and exclusive property in a previous divorce decree is liable for distribution upon dissolution of a subsequent marriage between the same parties
• Whether the defendant could claim a share in property that had already been distributed in a previous divorce action between the same parties
• Whether property acquired before a second marriage constitutes matrimonial property subject to distribution under section 7 of the Matrimonial Causes Act (Chapter 5:13)

1. A decree of divorce was granted. 2. The defendant's counter claim for distribution of Stand 14584 Ihlosi Road, Selbourne Park, Bulawayo was dismissed. 3. The property known as Stand 14584 Ihlosi Road, Selbourne Park, Bulawayo was declared to be the sole and exclusive property of the plaintiff by virtue of the order of court dated 21 July 2008 which remains extant. 4. The defendant was ordered to pay the costs of suit.

Property that has been awarded to a party as sole and exclusive property pursuant to a valid divorce decree is not subject to redistribution as matrimonial property upon dissolution of a subsequent marriage between the same parties. A party who has already received their share of immovable property in a previous divorce settlement cannot claim a share in property awarded to the other spouse in that same divorce, even after remarrying that spouse. The finality of property distribution orders in divorce proceedings is protected, and parties cannot have 'a second bite of the cherry' by remarrying with the intention of claiming property rights that have already been conclusively determined by a court.

The court observed that the defendant appeared to have entered into the second marriage with the ulterior motive of claiming a share in the Selbourne property, noting his proclamation that he had 'accomplished his mission' soon after the marriage was solemnized. The court also made observations about the deterioration of family relationships, noting that the defendant and children engaged in drug and substance abuse together, resulting in mental illness for two of the children. The court commented on the manipulation and abuse suffered by the plaintiff, including being chased from her own property and forced to seek refuge at her mother's house. These observations highlight the court's concern about the defendant's conduct but were not essential to the legal determination of property rights.

This case establishes an important principle in Zimbabwean matrimonial property law regarding the treatment of property that has been distributed in a previous divorce between the same parties who subsequently remarry. It affirms that property awarded as sole and exclusive property in a previous divorce decree is not automatically subject to redistribution upon dissolution of a subsequent marriage between the same parties. The case also illustrates judicial willingness to examine the motives behind remarriage and to prevent abuse of the matrimonial property distribution regime where one party enters into marriage with the ulterior purpose of claiming property rights that were already conclusively determined in previous proceedings.