Clever Tinarwo Chigu v Evyline Chigu (nee Chidenga)

The Plaintiff and Defendant were married on 25 September 2001 under the Marriage Act. The union was not blessed with any children, though the parties had three children who reached majority status. On 9 May 2023, the Plaintiff issued summons claiming a decree of divorce on the grounds that the marriage had irretrievably broken down. During the marriage, the parties acquired one immovable property at 53 Clyde Road, Eastlea, Harare in 2006, which the Plaintiff purchased using money borrowed from a bank in Italy while he was stationed there. The property was registered in both parties' names despite the Defendant making no monetary contribution. The Defendant owned a separate property in Kuwadzana 5 acquired before the marriage. The parties also acquired movable assets including a Mercedes Benz ABY 5980, Nissan NP300 ABY 1980, and disputed ownership of a Toyota Wish AEY 3904 and Nissan NP300 AFR 7589. The Defendant was a full-time housewife who had been a banker before marriage but left employment to support the Plaintiff's diplomatic career. The Plaintiff was a civil servant earning USD 288. The Defendant claimed spousal maintenance of USD 1000-1500, while the Plaintiff offered USD 150.

• Whether the Defendant should be awarded the entire immovable property at 53 Clyde Road, Eastlea, Harare, or 50% as offered by the Plaintiff
• Whether the Toyota Wish Registration AEY 3904 and Nissan AFR 4009 form part of the parties' matrimonial estate
• Whether the Defendant should be awarded the Nissan NP300
• The appropriate amount and duration of spousal maintenance to be paid by the Plaintiff
• The proper application of section 7(1) of the Matrimonial Causes Act in determining a just and equitable distribution of assets

1. A decree of divorce was granted. 2. Each party was awarded 50% share of 53 Clyde Road, Eastlea, Harare. 3. The property to be valued by an agreed valuer within 30 days. 4. The Defendant has option to buy out Plaintiff's share within 12 months of valuation. 5. If Defendant fails, Plaintiff has option to buy out Defendant's share within 12 months. 6. If both fail, property to be sold and proceeds shared equally. 7. The Defendant was awarded the Nissan NP300. 8. Each party awarded 50% of Mercedes Benz, to be valued and sold with proceeds shared equally. 9. Plaintiff to pay USD 150 per month spousal maintenance until Defendant remarries or becomes self-sufficient. 10. Each party to bear own costs.

The binding legal principles established are: (1) Under section 7(1) of the Matrimonial Causes Act, the overarching principle in distribution of assets upon dissolution of marriage is equality, and there must be compelling reasons to depart from this principle. (2) The concept of "assets of the spouses" in section 7 is intended to capture assets owned by spouses individually or jointly at the time of dissolution, not merely "matrimonial property" acquired during marriage. (3) A spouse cannot be deprived of their share of matrimonial assets based on the other spouse's voluntary financial obligations to third parties. (4) For spousal maintenance to be awarded, the claimant must prove: (a) need for maintenance, (b) the other spouse's capacity to pay, and (c) inability to sustain themselves. (5) Maintenance is meant to sustain a spouse incapable of self-sustenance and should be calculated to retain parties in a position similar to what they would have been in had the marriage continued, taking into account what is just and equitable in the circumstances.

The court observed that: (1) One of the consequences of divorce is the adjustment of life and expenses by the separating parties, implying that parties cannot expect to maintain exactly the same standard of living post-divorce. (2) The Defendant continuing to stay at the matrimonial property would only be possible if she bought out the Plaintiff's share. (3) The court noted disapprovingly that the Defendant's varying claims for maintenance (USD 1000 in pleadings, USD 1500 orally) showed she was "thumb sucking figures" - suggesting an improper approach to formulating maintenance claims. (4) While the Plaintiff may earn more during diplomatic duty, it was not established that he would be on diplomatic duty for the rest of his career, suggesting courts should base orders on current circumstances rather than speculative future earnings. (5) The justice of the case demands that the parent staying with non-self-sufficient children should receive the vehicle in better condition.

This case provides important guidance on the application of section 7(1) of the Matrimonial Causes Act in Zimbabwe, reinforcing the principle that equality is the starting point for division of assets on divorce. The judgment clarifies that: (1) the overarching principle in sharing assets of spouses on dissolution is equality, and compelling reasons are required to depart from it; (2) financial obligations to third parties (such as the Defendant's stepmother) do not justify depriving a spouse of their share; (3) the phrase "assets of the spouses" in section 7 is broader than "matrimonial property" and includes assets owned individually or jointly at dissolution; (4) spousal maintenance requires proof of need, the other spouse's capacity to pay, and inability of the claimant to sustain themselves; and (5) courts will rigorously examine claims for maintenance and require credible evidence rather than speculative amounts. The case also demonstrates the court's approach to disputed ownership of assets, requiring documentary evidence to establish third-party ownership.