Graig Neil Evans v Heather Jane Evans

This was a divorce action between the plaintiff husband and defendant wife involving ancillary issues. During pre-trial conference proceedings, both parties, with legal representation, entered into joint admissions on 4 December 2015. Paragraph 5 of the Joint Admissions stated that the immovable property (land and two residential properties) was the inheritance of the defendant and that the plaintiff would not pursue his claim for compensation in these proceedings against the defendant, but would instead claim against the Executor of the defendant's late mother's deceased estate. The property in question was land belonging to the defendant's late mother, Meri De Wilton Perrow, being the remainder of Lot 484 Greendale, commonly known as No. 222 Arcturus Road, Greendale, Harare. In the 1990s, the plaintiff and defendant entered into a verbal agreement with the defendant's mother to build their matrimonial home on this land. The property and improvements remained in the deceased estate. Before trial commenced, plaintiff's counsel sought to withdraw the admission in paragraph 5, arguing that the property was matrimonial property falling under section 7 of the Matrimonial Causes Act for distribution.

• Whether the plaintiff provided a reasonable explanation for the circumstances in which the admission was made and the reason for withdrawing it
• Whether it would be just and proper to grant leave for the admission to be withdrawn under section 36 of the Civil Evidence Act and Rule 189 of the High Court Rules
• Whether property registered in the name of a third party (the defendant's deceased mother's estate) constitutes a matrimonial asset subject to distribution under section 7 of the Matrimonial Causes Act [Chapter 5:13]
• What constitutes 'assets of spouses' under section 7(1)(a) and 7(2)(a) of the Matrimonial Causes Act

The application to withdraw the admission in paragraph 5 of the Joint Admissions was dismissed.

Property registered in the name of a third party does not constitute a 'matrimonial asset' or 'asset of spouses' within the meaning of section 7(1)(a) and 7(2)(a) of the Matrimonial Causes Act [Chapter 5:13], even if the spouses built improvements on that property and used it as their matrimonial home. The court's power to order division, apportionment or distribution of assets, or to order transfer of property, is limited to property owned by one or both spouses and does not extend to property owned by third parties. Where spouses have made improvements on third party land, the proper recourse is a claim for compensation against the property owner, not distribution under matrimonial causes proceedings. An application to withdraw an admission made during pre-trial conference will only be granted where: (1) there is reasonable explanation of the circumstances in which the admission was made; (2) there is a valid reason for withdrawal; (3) the withdrawal is sought bona fide; and (4) granting the withdrawal would be just in the circumstances. An admission made with legal representation, based on correct facts and law, and which does not prejudice the applicant's future legal remedies, will not be permitted to be withdrawn.

The court observed that while the clean break principle is important in matrimonial proceedings, it should not be misconstrued to mean that future claims by divorced couples cannot be entertained where there is good cause. The principle has a wider meaning in avoiding unnecessary clinging to an otherwise dissolved marriage. The court noted that section 7(1) of the Matrimonial Causes Act uses the words 'or at any time thereafter', indicating that claims are not barred at later stages. The court also observed that section 7 aims to place spouses in as much as reasonably practical in the same position they would have been in had the marriage subsisted, but this does not extend to bringing in property of third parties to cushion the spouses. The court distinguished between property held on behalf of spouses (which could be subject to orders under section 7(2)(a)) and property owned by third parties (which cannot be). The court noted that any order made in respect of property not owned by the parties would be incompetent and not capable of enforcement.

This case clarifies important principles in Zimbabwean matrimonial property law regarding the scope of 'matrimonial assets' under section 7 of the Matrimonial Causes Act. It establishes that property belonging to third parties, even if used as a matrimonial home, does not fall within the court's jurisdiction to distribute between spouses in divorce proceedings. The case also reinforces procedural principles regarding withdrawal of admissions made during pre-trial conference, emphasizing that such withdrawal is an indulgence requiring reasonable explanation, bona fides, and consideration of the interests of justice. It demonstrates the limits of the court's wide discretion under section 7 of the Matrimonial Causes Act in ensuring fair distribution between spouses.