The plaintiff and defendant were married under the African Marriages Act on 14 June 1989. On 19 October 2011, this court declared the marriage a nullity in case HH264/11 because the plaintiff had been previously married to two other women - Constance Chasi and Rosaria Manjala - under the monogamous Marriages Act. The marriage to Constance Chasi was annulled in 1990, but plaintiff remained married to Rosaria. The defendant was unaware of plaintiff's prior valid marriage to Rosaria and believed for over 20 years that her marriage was valid. After the nullity decree, plaintiff sued for distribution of property accumulated during the purported marriage. The main disputed properties were: (1) House 3A Helena Road, Marlborough, Harare (registered in joint names); (2) 13 Neasden Avenue, Bulawayo (registered in defendant's name); (3) 1-44th Avenue, Haig Park, Mabelreign; and (4) movable property. Evidence showed that plaintiff left employment in 1985 and was largely unemployed during the relationship, while defendant was continuously employed and received war victims' compensation. The couple lived in Belgium (5 years) and Ethiopia (2 years) where defendant supported plaintiff financially.
The court ordered: (1) 13 Neasden Avenue, Bulawayo awarded to defendant as her sole property; (2) Defendant awarded 70% share and plaintiff 30% share of 3A Helena Road, Marlborough; (3) Defendant given option to buy out plaintiff's 30% share within 6 months of evaluation, failing which property to be sold and proceeds divided 30:70; (4) Specific movable property listed awarded to plaintiff (including 1 TV, furniture, BMW, car trailer, 13 cattle, etc.); (5) Remaining movable property awarded to defendant (including Italian furniture, appliances, Peugeot 605, 14 cattle, etc.); (6) Each party to bear own costs.
Section 7 of the Matrimonial Causes Act expressly applies to the distribution of property when a marriage is declared a nullity, and courts must have regard to all circumstances under section 7(4) including direct and indirect contributions, conduct of parties, and the goal of placing parties in the position they would have been in had a normal marriage continued. Where property is registered in joint names, there is a presumption of equal ownership, but this presumption can be displaced where evidence shows disproportionate contributions by one party and deceitful conduct by the other. A party who knowingly enters into a bigamous marriage and conceals their true marital status from their spouse should not benefit from such deceitful conduct when property is distributed following nullification of the marriage.
The court observed that situations where parties fail to realize that contracting a church marriage makes the marriage monogamous are very common in African society (quoting Makovah v Makovah). The court noted that plaintiff's deceitful conduct in leading defendant on for over 20 years despite knowing the marriage was void (evidenced by his 1990 nullification of marriage to Constance Chasi on grounds of prior marriage) was aimed at feasting on defendant's earnings. The court commented that plaintiff was "a stranger to the truth" and "not a credible witness at all" based on numerous contradictions and improbabilities in his evidence. The court remarked that defendant's offer to plaintiff regarding movable property was "very generous" considering the circumstances.
This case is significant in Zimbabwean family law for: (1) Confirming that section 7 of the Matrimonial Causes Act applies to nullified marriages, particularly putative marriages where one party believed the marriage was valid; (2) Protecting parties who enter marriages in good faith from being left with nothing when the marriage is subsequently nullified due to the other party's deceit; (3) Demonstrating that courts will consider conduct and contributions when deviating from equal division of jointly-owned property; (4) Illustrating that courts will scrutinize credibility and require corroborating evidence of financial contributions; (5) Applying the principle that property registered in joint names is presumed to be held in equal shares unless proved otherwise (from Ncube v Ncube); (6) Reinforcing that courts will not allow a dishonest party who concealed a prior monogamous marriage to benefit from their deceit.