Ephias Admire Mahachi v Kudakwashe Mahachi (nee Masaka)

The parties were married under the Marriage Act on 27 September 1985 and have 5 children together, all now majors. The plaintiff instituted divorce proceedings on 17 June 2011 after almost 16 years of marriage (corrected to 26 years based on dates). The parties separated in 1998 when the plaintiff moved out of the matrimonial home and have not lived together or shared conjugal rights for 20 years. The plaintiff has been involved with several women since separation and has two children with his current partner, Linda Midzi, with whom he has lived since 2008. The defendant was a fulltime housewife throughout the marriage and made no financial contributions to property acquisition. The plaintiff is a Lt. Colonel (later promoted to a higher rank) in the Zimbabwe National Army. The defendant opposed the divorce, believing the plaintiff would eventually return home, and was willing to condone his extramarital affairs. Disputed matrimonial properties included several stands in Harare and elsewhere, a farm in Odzi (sold in 2012), commuter omnibuses (sold), tractors, and various motor vehicles. The defendant sustained herself from 1998 through rentals from the Glen View property.

• Whether the marriage relationship has irretrievably broken down to warrant a decree of divorce
• Whether it is fair and just that the parties share the matrimonial property as proposed by the plaintiff
• What constitutes matrimonial property subject to distribution upon divorce
• Whether property acquired after separation is subject to distribution
• Whether property disposed of pending divorce should be taken into account in distributing remaining assets
• The appropriate distribution of matrimonial assets considering contributions and circumstances of the parties

1. A decree of divorce was granted. 2. The plaintiff was awarded Stand 285/286 Murambinda Growth Point and the Norton Farm. 3. The defendant was awarded all movable property at 9 Darling Close, Hatfield, Harare. 4. The defendant was awarded: 9 Darling Close, Hatfield, Harare and Stand 6888, Glen View, Harare, with the plaintiff to meet costs of transfer and sign transfer papers within 6 months (including ensuring Alex Mudakwa signs for the Hatfield property). The Sheriff was authorized to sign if plaintiff/Alex Mudakwa failed to do so. 5. The defendant was awarded the Murehwa plot subject to regularization with the Ministry of Lands and Rural Resettlement. 6. Each party to bear its own costs.

1. Under s 5 of the Matrimonial Causes Act, a decree of divorce on grounds of irretrievable breakdown requires showing that the marriage relationship has broken down to such an extent that there is no reasonable prospect of restoration of a normal marriage relationship. The minimum period of separation warranting divorce is 12 months under s 5(2)(a). 2. Where one party wants out of the marriage and is not changing their mind, the other party must show evidence of prospects of reconciliation; merely not wanting the marriage to end is insufficient to prevent divorce (applying G v G 2008 (1) ZLR 254 (H)). 3. Under s 7(1) of the Matrimonial Causes Act, only assets of the spouses that are available at the time of dissolution of marriage are subject to distribution. This includes property acquired individually or jointly before marriage, during marriage, and after separation (applying Gonye v Gonye 2009 (1) ZLR 232 (S) and Sibanda v Sibanda SC-7-14). 4. Property that has been disposed of by the parties cannot be subject to distribution as it is no longer available, but where a spouse disposed of assets mala fide pending divorce, the court may take that factor into account in distributing remaining assets in exercise of its broad discretion under s 7(1). 5. In distributing matrimonial property under s 7(4), the court must have regard to all circumstances of the case to achieve justice, including the need to maintain an economically dependent spouse who lacks employability and professional qualifications.

The court observed that the defendant appeared motivated by bitterness and a desire to spite the plaintiff rather than genuine affection, possibly believing that frustrating him would make him return to her. The court noted the defendant's credibility was poor and that she "will lie through her teeth to get anything and she is not even ashamed about it." The court also noted it was "a mystery" how after 20 years of desertion the defendant remained committed to the plaintiff, questioning whether her opposition was genuine or motivated by ulterior motives. The court observed that after 20 years of separation "there is no more marriage relationship to talk about at all" and "all there is between the parties now is just the marriage certificate, just a legal document binding the parties who are now total strangers to each other." The court also commented that the defendant's delaying tactics throughout the proceedings were designed to avoid the inevitable finalization of the divorce.

This Zimbabwean High Court judgment demonstrates the application of the Matrimonial Causes Act in cases of long-term separation and division of matrimonial assets. It establishes important principles regarding: (1) what constitutes irretrievable breakdown where parties have been separated for an extended period exceeding statutory minimums; (2) that unilateral opposition to divorce without evidence of prospects of reconciliation is insufficient to prevent dissolution; (3) that only assets existing at the time of dissolution are subject to distribution, though disposal of assets pending divorce can be considered; (4) the treatment of property acquired after separation; (5) consideration of a spouse's need for maintenance through property awards where one party has been economically dependent; and (6) the court's broad discretion under s 7 to achieve fairness between parties. The case also addresses informal family arrangements regarding property and the credibility assessment required when parties dispute property transactions.