Bernadette Makaya v James Makaya

The parties were married on 9 September 1977 in Bombay, India. The marriage produced four children, of whom only one was still a minor at the time of the proceedings. The plaintiff instituted divorce proceedings on 2 July 1996. Both parties agreed that the marriage had irretrievably broken down with no reasonable prospects of restoration. The matrimonial assets included: the matrimonial home at 4 Larkholme Avenue, Sunridge, Harare; a house in Kadoma at 5 Five Avenue; a house in Chegutu at 5 Acacia Avenue; stands 1486 and 1126 Borrowdale Brooke, Harare; and allegedly Moorebridge Farm in Bindura (which the defendant denied owning). The plaintiff claimed she had contributed significantly to the marriage by supporting the defendant financially, morally, and spiritually during his studies, and through her subsequent employment. The defendant denied receiving such assistance, claiming he was on a Commonwealth Scholarship and that the plaintiff was unable to maintain steady employment. The defendant lost his job on 31 December 2000 following what became known as the NOCZIM saga, in which the plaintiff had been a star witness for the State. The defendant registered a trust on 1 September 2003, purportedly transferring the Kadoma and Chegutu properties for the benefit of his children, including two children with another woman, Doreen Charlie.

• Whether a decree of divorce should be granted on the grounds of irretrievable breakdown of the marriage
• How the matrimonial assets should be divided between the parties in terms of section 7 of the Matrimonial Causes Act 1985
• Whether the conduct of the parties should affect the division of assets
• Who should be granted custody of the minor child
• What maintenance should be awarded for the plaintiff and the minor child
• Whether the transfer of matrimonial property to a trust pending divorce proceedings affects the division of assets
• Whether Moorebridge Farm constitutes a matrimonial asset

1. A decree of divorce was granted. 2. Custody of the minor child Catherine Makaya was awarded to the plaintiff. 3. The defendant was granted reasonable access to the minor child. 4. The defendant was ordered to pay maintenance of $300,000.00 monthly for the minor child and half of all school fees including tertiary education. 5. Assets were divided as follows: (a) Each party to retain movable items in their possession; (b) Plaintiff awarded the matrimonial home at 4 Larkholme Avenue, Sunridge, Harare; (c) Plaintiff awarded 5 Five Avenue, Kadoma; (d) Defendant awarded the Borrowdale Brooke property; (e) Defendant awarded 5 Acacia Avenue, Chegutu. 6. Each party to bear their own costs.

Once parties agree that a marriage has irretrievably broken down, the court should not inquire into mutual recriminations or apportion blame unless the conduct of one party is "both obvious and gross" such that ignoring it would be repugnant to justice. In dividing matrimonial assets under section 7 of the Matrimonial Causes Act 1985, where mutual recriminations counter-balance each other and neither party's conduct is significantly worse than the other's, the court should endeavor to place the spouses in the position they would have been in had a normal marriage relationship continued, treating them as equal co-participants in building the marital estate. A spouse cannot defeat the other spouse's claim to matrimonial property by transferring assets to a trust during pending divorce proceedings. Matrimonial assets subject to distribution include all property in a spouse's possession at the time of distribution, whether acquired before or during marriage, except assets acquired by inheritance, custom, or having particular sentimental value as provided in section 7(2).

The court noted that both counsel failed to comply with the court's request to furnish proper descriptions of the immovable properties as they appear on title deeds. The court observed that the plaintiff's claim regarding a stolen vehicle (Mazda 626) could not be the subject of an order where it was averred but not disputed that the defendant later claimed it was stolen. The court commented that if the plaintiff were not a suitable custodian, the defendant would surely not have left the child with her for so long without taking remedial steps. The court noted the curiosity that while break-ins allegedly occurred in 1991, the police CR number was dated 19/09/2000 and 4th July 2001. The court also noted that no order of maintenance would be made in favor of the plaintiff given that both parties were not gainfully employed and she was awarded one of the out-of-Harare properties.

This case is significant in Zimbabwean matrimonial law as it applies and reinforces the principles established in Ncube v Ncube regarding the irrelevance of marital misconduct to property distribution in divorce proceedings unless the conduct is "both obvious and gross." The case demonstrates the court's approach to equitable distribution of matrimonial assets accumulated over a long marriage, treating parties as equal contributors regardless of disputes about individual contributions. It also illustrates the court's disapproval of attempts to defeat matrimonial property claims through transfers to trusts pending divorce proceedings. The case exemplifies the application of section 7 of the Matrimonial Causes Act 1985 in dividing assets to place parties in the position they would have been in had a normal marriage relationship continued, without delving into fault-based recriminations.