Grace Ndabambi v Chitepo Kasinaubare

The parties entered into an unregistered customary law union on 30 October 1998 and had three children, one being a minor born on 30 June 2010. During the marriage they acquired three immovable properties: Stand 3897 Tynwald North (jointly registered matrimonial home), Stand 6567 Nkwisi Gardens (registered in Kastepo Trading Private Limited with plaintiff holding 20% and defendant 80% shares), and Stand 1797 Jacha, Epworth (registered solely in defendant's name). The properties were acquired from proceeds of a grocery store (run by plaintiff) and bottle store (run by defendant) they owned in Epworth. The businesses collapsed in 2008. Although housed under the same roof, the parties had effectively separated, with the defendant maintaining a bachelor pad within the house. A family meeting had discussed the marriage breakdown but no formal customary divorce gesture ("gupuro") had been given. Both parties agreed to divorce and custody of the minor child but disputed property distribution and maintenance quantum.

• Whether there was still an extant customary law union
• Whether Stand 6569 Nkwisi Gardens registered in a company formed part of assets of the union
• What constitutes equitable distribution of assets acquired during an unregistered customary law union
• Whether the corporate veil should be lifted to treat company property as matrimonial assets
• The quantum of maintenance payable for the minor child
• Whether general law or customary law applies to distribution of immovable property in an unregistered customary law union

1. Decree of divorce granted. 2. Custody of minor child Sandra Kasinaubare awarded to plaintiff with defendant having access during half of school holidays and special occasions by agreement. 3. Plaintiff responsible for child's day-to-day living expenses; defendant responsible for school fees, uniforms and school-related expenses. 4. Plaintiff awarded Stand 3897 Tynwald North; defendant awarded Stand 6569 Nkwisi Gardens and Stand 1797 Jacha, Epworth, subject to: (a) valuation of all three properties within specified timeframes, (b) equalization payment within 180 days by whichever party receives properties of greater combined value, (c) plaintiff to relinquish 20% share in Kastepo Trading Company to defendant, (d) parties to effect transfers with Sheriff authorized to sign if either defaults, (e) each party to bear own costs.

In an unregistered customary law union, immovable property is dealt with in terms of general law where parties have registered title and their lifestyle accords with general law application. The corporate veil may be lifted in matrimonial property distribution where a company is merely a vehicle for registering property and is effectively the alter ego of the spouses, allowing the company's assets to be treated as assets of the spouses for purposes of equitable distribution. A woman cannot be held to ransom in a customary marriage by a spouse who refuses to follow customary divorce procedures; the breakdown of any union is evidenced by the factual circumstances of the lived realities of the parties. Section 7 of the Matrimonial Causes Act provides useful guidance for distribution of assets in an unregistered customary law union, with the court considering all assets of the spouses (individually or jointly owned) acquired during the subsistence of the marriage. Both parents have an obligation to support their minor child according to their respective means and capacities.

The court observed that both parties are able-bodied and can find ways of supplementing their income to live within their means and preserve their assets. The court also noted that it would be toxic for parties whose marriage has irretrievably broken down to continue living in the same property, even though both had become accustomed to the Tynwald property. The court commented that putting each party in the position they would have been had the marriage continued requires a delicate balancing act. The court also remarked that the level of tolerance between the parties may have diminished as the years of their 26-year union wore on. The court noted the absence of documentary evidence from both parties regarding their respective contributions and earnings, observing that the plaintiff explained she saw no reason to keep receipts as they were doing things as a family.

This case is significant in Zimbabwean matrimonial law for several reasons: (1) It confirms the application of general law principles to the distribution of immovable property in unregistered customary law unions where parties have registered title and live a lifestyle according with general law; (2) It demonstrates the court's willingness to recognize factual breakdown of customary marriages without strict adherence to customary formalities like "gupuro," particularly to protect women from being held to ransom; (3) It applies the principle of lifting the corporate veil in matrimonial property disputes where a company is merely the alter ego of the spouses, extending the principles in Gonye v Gonye to unregistered customary unions; (4) It provides guidance on equitable distribution of assets acquired during an unregistered customary law union using section 7 of the Matrimonial Causes Act; (5) It balances contributions, custody arrangements, and future needs in dividing matrimonial property to achieve substantive equality between spouses.