Cloupas Makoni v Patience Mugoba Makoni (nee Mazani)

The plaintiff and defendant married on 24 May 2002 and had two minor children. In April 2016, the plaintiff filed for divorce. During the marriage, they acquired movable and immovable property, including Stand 336, New Forrester Goodhope, Marlborough, Harare, financed through a $100,000 housing loan from the plaintiff's employer, NSSA, in 2012. In March 2017, after divorce proceedings commenced, the plaintiff was retrenched from NSSA and received a retrenchment package. His gross retrenchment amount was $131,984.95, from which various deductions were made including $47,533 for a car loan, $22,000 towards the housing loan, and $42,135.52 in tax, leaving a net payment of $18,580.67. The house was sold with net proceeds of $78,158.12 after the mortgage was repaid. The parties agreed to most matters by consent at the pre-trial conference held on 26 March 2018, including that the marriage had irretrievably broken down, custody arrangements, maintenance, and 50:50 sharing of house sale proceeds. The only contested issue was whether the retrenchment package constituted matrimonial property subject to distribution and, if so, what percentage the defendant should receive. The defendant claimed 50% of both the net payment ($18,580.67) and the car loan deduction ($47,533), totaling $33,056.84. The plaintiff testified the net payment was exhausted by December 2017 meeting family obligations while he remained unemployed. The defendant, who had never been employed during the marriage (allegedly at the plaintiff's insistence), argued she was entitled to share the retrenchment package equally.

• Whether a retrenchment package constitutes matrimonial property (assets of the spouses) subject to distribution upon divorce under section 7(1) of the Matrimonial Causes Act [Chapter 5:13]
• Whether the defendant is entitled to a share of the car loan repayment amount ($47,533) deducted from the retrenchment package
• Whether the defendant is entitled to a share of the net retrenchment payment ($18,580.67) that had been exhausted
• Whether the failure to file an amended plea in response to the defendant's amended counter claim entitled the defendant to default judgment
• What constitutes a fair and equitable distribution of the retrenchment package

1. A decree of divorce was granted by consent. 2. Custody of the two minor children awarded to the defendant with the plaintiff having access on alternate school holidays. 3. The plaintiff to continue paying maintenance of US$100 per month per child plus educational expenses as ordered by the maintenance court on 22 March 2016. 4. The plaintiff to continue paying maintenance of $100 per month to the defendant as previously ordered. 5. Each party to retain movable property in their possession. 6. Each party awarded a 50% share of the net proceeds ($78,158.12) from the sale of Stand 336, New Forrester Goodhope, Marlborough, Harare. 7. The defendant's counter claim for a share of the plaintiff's retrenchment package was dismissed. 8. Each party to bear its own costs.

1. A retrenchment package constitutes an "asset of the spouses" subject to distribution under s 7(1) of the Matrimonial Causes Act [Chapter 5:13] as it qualifies as a "benefit" contemplated in s 7(4), similar to pensions and gratuities. 2. "Assets of the spouses" under s 7(1) includes all property owned by spouses individually or jointly at the time of dissolution of marriage, including property acquired before marriage, during marriage, and even after separation (following Gonye v Gonye 2009 (1) ZLR 232 (S)). 3. Where portions of a retrenchment package have been used to discharge legitimate debts to the employer (such as loan repayments that were mandatory upon retrenchment), those amounts are not available for distribution between spouses. 4. Where a retrenchment package has been legitimately exhausted meeting family financial obligations and there is credible evidence of such exhaustion, courts will not make orders for distribution of amounts that no longer exist. 5. A procedural irregularity arising from failure to file a plea to an amended counter claim may be cured where parties subsequently agree on issues for trial at a pre-trial conference and the matter proceeds to trial on the merits, particularly where no proper notice for default judgment was given under Rule 272(1)(a) of the High Court Rules.

The court made several non-binding observations: 1. The court commented that expecting US$18,580.67 to last more than 1.5 years for a family of four while being the sole source of income was "unreasonable, unrealistic and irrational." 2. The court observed that expenses such as servicing a car and repainting a house to fetch a better sale price cannot be characterized as unnecessary expenses. 3. The court noted that it is fair for each party to retain the vehicle they were using during the marriage where both vehicles were acquired through loans taken by one party without financial contribution from the other. 4. The court expressed the view that the defendant's argument that the plaintiff should sell his car and downsize because of unemployment was "unreasonable to say the least," particularly where the defendant was retaining her own vehicle. 5. The court observed that the principle "what is not denied is taken to have been admitted" applies only where a plea has been filed but does not dispute specific averments, not where no plea has been filed at all. 6. The court commented on the apparent unfairness of the defendant seeking to obtain judgment "by unscrupulous means" on a technicality after the parties had agreed to proceed to trial on the disputed issue.

This case is significant in Zimbabwean family law jurisprudence for clarifying that retrenchment packages constitute "assets of the spouses" subject to distribution under s 7(1) of the Matrimonial Causes Act [Chapter 5:13]. The judgment provides important guidance on the interpretation of "benefits" under s 7(4) and extends the principle established in Gonye v Gonye 2009 (1) ZLR 232 (S) regarding what constitutes divisible assets. However, it also establishes that where such assets have been legitimately exhausted meeting family obligations, or where deductions represent repayment of legitimate debts, courts will not make nominal orders for distribution. The case demonstrates judicial pragmatism in balancing legal entitlement with practical realities, particularly in the context of unemployment and financial hardship. It also addresses important procedural issues regarding the effect of failure to plead and the circumstances in which such irregularities may be cured by subsequent agreement on issues for trial.