Gertrude Tendesayi Tawengwa (nee Mbofana) v Charles Zvidzayi Tawengwa

The applicant and respondent are husband and wife married for 36 years with four adult children. They still live under the same roof but lead separate lives. The applicant, a 58-year-old unemployed housewife, instituted divorce proceedings in 2016 (HC 3452/16). Following the institution of divorce proceedings, the respondent allegedly stopped adequately maintaining the applicant, forcing her to rely on her adult children for financial support. The applicant applied for maintenance pendente lite in the sum of US$1,500 per month and contribution of US$8,000 towards her costs for the divorce proceedings in terms of Rule 274 of the High Court Rules, 1971. The respondent opposed the application, claiming he was already paying US$300 per month (which he only started paying after the application was lodged), that his business enterprises collapsed in 2005, and that he relies solely on his Senator's allowances of US$1,207 per month. However, evidence showed the respondent owned three immovable properties in his personal name (including properties in affluent Greendale and Philadelphia suburbs), had 50% shareholding in several companies, and his actual net salary was US$2,113 per month. The respondent also paid for groceries and utility bills.

• What is the appropriate quantum of maintenance pendente lite to be paid by the respondent to the applicant?
• Whether the respondent should contribute towards the applicant's legal costs in the pending divorce proceedings?
• What are the requirements for a spouse to obtain contribution towards legal costs in matrimonial proceedings?
• What standard of disclosure is required from parties in maintenance applications?

1. The respondent shall pay maintenance pendente lite to the applicant in the sum of US$1,000 per month starting from the date of this order to the date of finalization of the divorce matter HC 3452/16. 2. The respondent to contribute the sum of US$8,000 towards the applicant's legal costs in the divorce matter pending in this court. 3. The respondent to pay costs of suit on an attorney-client scale.

In determining maintenance pendente lite, the court must have regard to what would be adequate maintenance for a wife of a man in the husband's position, considering his ability to pay and all other circumstances (Lindsay v Lindsay principle). Parties to maintenance applications must exercise utmost good faith and be candid with the court regarding their expenses, income, and resources; failure to do so will result in the court making determinations based on available evidence and drawing necessary inferences. A spouse's ability to pay maintenance is assessed by considering not only stated income but all assets, including immovable properties and shareholdings in companies. For contribution towards legal costs in matrimonial proceedings, an applicant must establish: (i) a subsisting marriage; (ii) the suit is matrimonial in nature; (iii) reasonable prospects of success; (iv) inability to finance the action; and (v) the other spouse's ability to contribute. Where a husband is a wealthy man, the wife is not obliged to realize her possessions to finance matrimonial litigation and is entitled to litigate on a scale commensurate with the husband's means.

The court observed that expecting a 58-year-old woman who has been unemployed since 2005 to seek and find formal employment would be "wishful thinking given the state of the economy." The court noted that allowing education costs is important to enable the applicant to pursue self-help projects and look after herself. The court commented that the respondent's uncooperative attitude in negotiations, including walking out of meetings or failing to attend, increases legal costs. The timing of the respondent's payment of US$300 (only after the application was lodged and a day before filing opposition) suggested the court "cannot be hoodwinked to believe that the respondent was meeting his duty to maintain his spouse."

This case is significant in Zimbabwean family law for clarifying the principles applicable to applications for maintenance pendente lite and contribution towards legal costs in matrimonial proceedings. It emphasizes the duty of utmost good faith and candor required from parties in disclosing their financial circumstances to the court. The judgment reinforces that courts will draw adverse inferences against parties who fail to provide complete financial disclosure. It also provides guidance on how courts should assess a spouse's ability to pay maintenance by looking beyond stated income to consider all assets and resources. The case demonstrates the application of constitutional principles of equality in marriage (s 26 of the Constitution of Zimbabwe) and the Matrimonial Causes Act provisions in determining spousal rights during divorce proceedings. It is particularly relevant for cases involving long marriages where one spouse has been financially dependent and the other has accumulated substantial wealth.