Gladys Chikuni v Busani Mavhiyo

The plaintiff (Gladys Chikuni) and defendant (Busani Mavhiyo) were married under the Marriage Act, Chapter 5:11 on 23 April 2011 in Harare. During the marriage, the parties acquired various assets. The plaintiff was engaged in the business of buying and reselling residential stands and operating shops, while the defendant initially worked as a bus tout and later managed the couple's transport business consisting of two IVECO buses. The plaintiff owned Stand 3643 Mainway Meadows before marriage, which the parties agreed would remain her property. The parties jointly purchased Stand 6736 of Lot 14 Tynwald. The plaintiff also purchased Stand 13059 Madokero on 31 July 2014 in her sole name as part of her business ventures. The family moved into the Madokero property in 2017 after the plaintiff developed it. On 9 August 2017, the plaintiff sold the Madokero property to Lennon Tswano. From April 2018, the parties paid rent to Lennon to continue occupying the property. The plaintiff vacated in August 2018 and the defendant in September 2018 due to inability to pay rent. On 16 October 2018, the plaintiff sued for divorce and distribution of assets. The main dispute concerned whether Stand 13059 Madokero remained available for distribution.

• Whether the marriage relationship had irretrievably broken down
• Whether Stand 13059 Madokero constituted matrimonial property available for distribution
• Whether the sale of Stand 13059 Madokero by the plaintiff to Lennon Tswano was genuine or a sham intended to defeat the defendant's rights
• What constitutes a just and equitable distribution of the spouses' assets under section 7 of the Matrimonial Causes Act

1. A decree of divorce was granted. 2. The plaintiff was awarded the IVECO motor vehicle registration number ADC 2136 as her sole and exclusive property. 3. The defendant was awarded the IVECO motor vehicle registration number ADC 4954 as his sole and exclusive property. 4. The plaintiff was awarded a 50% share of Stand number 6736 of Lot 14 Tynwald, Harare with the defendant awarded the other 50%. 5. The Registrar was to appoint an estate agent to evaluate Stand 6736 of Lot 14 Tynwald within 30 days from request, with evaluation costs shared equally. 6. Stand 6736 of Lot 14 Tynwald was to be sold on the open market by the appointed estate agent with parties awarded 50% each of the net proceeds. 7. Each party was to bear their own costs of suit. Stand 13059 Madokero was excluded from distribution.

A spouse has the legal right to dispose of property registered in their sole name without the consent of the other spouse, even if it forms part of the matrimonial estate, provided the disposal is bona fide. For a court to intervene and set aside such a disposal, the challenging spouse must prove on a balance of probabilities that: (1) the disposal was not genuine but a sham; (2) it was intended to defeat the other spouse's just rights; and (3) the third party purchaser was involved in fraudulent intent. Mere suspicion or the existence of a marital dispute is insufficient - credible evidence is required. An asset disposed of before the dissolution of marriage and which is no longer owned by either spouse at the time divorce proceedings are instituted is not available for distribution under section 7 of the Matrimonial Causes Act. The definition of 'assets of the spouses' under section 7 includes all property belonging to either or both spouses at the time of dissolution of the marriage.

The court observed that the fact that property is registered in one spouse's name and that spouse engaged in business ventures of buying and reselling properties as part of their trade provides context for understanding the nature of particular property acquisitions. The court also noted that the manner of acquisition or by whom an asset was acquired does not necessarily determine to whom it will be awarded, as section 7 empowers the court to transfer a spouse's asset to the other spouse in endeavoring to achieve just and equitable distribution. The court commented on the significance of a party's conduct in failing to take legal steps to protect asserted rights over an extended period (from December 2014 to September 2018 in this case) as indicative of acceptance of the property's status. The court also observed that it is not the norm for an owner to vacate their property for no reason or at the instance of a third party with no acquired rights, suggesting that the defendant's voluntary vacation of the Madokero property supported the genuineness of the sale.

This case provides important guidance on the distribution of matrimonial assets in Zimbabwe, particularly regarding: (1) the right of a spouse to dispose of property registered in their sole name during marriage without the other spouse's consent; (2) the burden of proof required to establish that a disposal of property was a sham intended to defeat a spouse's rights; (3) the application of section 7 of the Matrimonial Causes Act in determining what constitutes 'assets of the spouses' available for distribution; and (4) the distinction between property acquired as part of a spouse's individual business ventures versus jointly acquired matrimonial property. The judgment reinforces that mere suspicion or intuition is insufficient to challenge a property disposal - credible evidence of fraudulent intent is required.