Flora Ndoro (nee Feremenga) v Fabian Chamunorwa Ndoro

The plaintiff and defendant married on 27 May 1976 under the African Marriage Act (Chapter 5:07). The marriage produced five children, all now majors (one deceased). The parties started having marital problems in 1988 and lost love and affection for each other. The parties had no sexual intercourse for approximately 24-30 years, with each blaming the other (plaintiff alleged defendant used herbs; defendant alleged plaintiff denied him conjugal rights and was a "spiritual husband"). In August 2018, the defendant forced the plaintiff out of the matrimonial home. The plaintiff, then aged 66, issued summons seeking a decree of divorce and ancillary relief. At pre-trial conference, parties agreed the marriage had irretrievably broken down with no prospects of reconciliation, and agreed on distribution of movable assets. The sole disputed issue was distribution of two immovable properties: stand 1976 Bulawayo North (28 Heany Avenue, Northend) and stand 56368/2 Lobengula, Bulawayo. The plaintiff claimed a 50% share; the defendant argued she was entitled to nothing based on customary law and her failure to perform marital duties.

• Whether the marriage had irretrievably broken down
• Whether customary practices that deny a wife a share in matrimonial property for denying conjugal rights are constitutional
• What constitutes a just and equitable distribution of matrimonial property under section 7(4) of the Matrimonial Causes Act
• Whether indirect contributions (domestic work and child-rearing) entitle a spouse to a share in matrimonial property
• Whether conduct of parties in causing marriage breakdown affects distribution of assets

1. Decree of divorce granted. 2. Movable property distributed as agreed at pre-trial conference. 3. Plaintiff awarded 50% share in stand 56368/2 Old Lobengula, Bulawayo. 4. Plaintiff awarded 50% share in stand 1976 Bulawayo North (28 Heany Avenue, Northend). 5. Parties given right to buy each other out within 6 months. 6. Properties to be valued by estate agent within 30 days. 7. If neither party buys out the other, properties to be sold through estate agent and net proceeds shared equally. 8. Parties to contribute equally to valuation costs. 9. Each party to bear own costs.

The binding principles are: (1) Customary laws or practices that deny women a share in matrimonial property on the basis of alleged failure to perform marital duties (such as denying conjugal rights) are void as unconstitutional infringements of women's rights under section 80(3) of the Constitution. (2) Under section 7(4) of the Matrimonial Causes Act, indirect contributions through domestic work, household management, and child-rearing over a long marriage are valid and significant contributions entitling a spouse to an equitable share in matrimonial property, even absent direct financial contributions. (3) Where both parties are equally to blame for the irretrievable breakdown of a marriage and the court does not apportion blame, the conduct of the parties is not a relevant factor in determining the distribution of matrimonial assets. (4) Courts must consider all circumstances including duration of marriage, age of parties, future employment prospects, contributions made, and the objective of placing parties in the position they would have been in had the normal marriage relationship continued.

The court made several non-binding observations: (1) It noted with concern that the defendant's threats to the plaintiff and the court (including reference to a magistrate's death after an adverse order) were inappropriate and that courts must determine issues without fear or favour. (2) The court commented that both parties being elderly with diminished employment prospects was a relevant consideration in achieving fairness. (3) The court observed that the defendant's refusal to offer any share was based on misplaced beliefs about custom having no place in modern law. (4) The court noted the defendant's medical conditions (arthritis, diabetes, hypertension) though this did not affect the ultimate distribution. (5) The court emphasized the practical approach of allowing parties to buy each other out before forcing a sale, as a measure to achieve fairness.

This case is significant in Zimbabwean law (relevant to South African jurisprudence on similar issues) as it: (1) affirms that customary practices denying women property rights based on alleged failure to perform marital duties are unconstitutional under constitutional provisions protecting gender equality; (2) clarifies that indirect contributions through domestic work and child-rearing over a long marriage entitle a spouse to an equal share in matrimonial property; (3) establishes that where both parties are equally to blame for marriage breakdown, conduct is not a relevant factor in property distribution; (4) demonstrates the application of constitutional provisions voiding customs that infringe women's rights in the matrimonial property context; and (5) provides guidance on achieving equitable distribution where properties have unequal values.