Kholisani Nkala v Sarah Nkala (nee Sebata)

The parties, both residing in the United Kingdom and working as medical professionals, were married on 16 December 2000 under the Marriages Act (Chapter 5:11) in Gwanda. The marriage produced three minor children. The relationship broke down and the parties separated, with the plaintiff instituting divorce proceedings on 11 September 2019. Prior to trial on 4 November 2021, the parties reached agreement on most issues including divorce, custody, maintenance, and distribution of most movable and immovable property by consent order. Two items remained in dispute and proceeded to trial: a Nissan Pathfinder motor vehicle recently imported into Zimbabwe, and stand number 14669 Selbourne Park, Bulawayo. The Selbourne Park property had been sold by the plaintiff in 2018 for US$15,000, with proceeds allegedly used for family improvements and holidays. The Nissan Pathfinder was purchased by the plaintiff in 2011 in the UK, registered in his name, with monthly instalments of £350 paid by him. He shipped it to Zimbabwe at a cost of £800 and paid US$7,400 in excise duty. The defendant claimed she contributed to both assets and sought a share.

• What property is subject to distribution upon divorce under section 7(1) of the Matrimonial Causes Act (Chapter 5:13)?
• Whether a property already sold and no longer in existence can be subject to distribution in divorce proceedings?
• Whether a motor vehicle registered in one spouse's name and primarily funded by that spouse should be awarded to that spouse?
• What is the extent of the court's discretion in distributing assets of spouses in divorce proceedings?
• Whether direct financial contributions outweigh indirect contributions in distribution of assets?

1. The Nissan Pathfinder motor vehicle was awarded to the plaintiff as his sole and exclusive property. 2. No order was made in respect of stand 14669 Selbourne Park, Bulawayo. 3. Each party to bear its own costs.

In divorce proceedings under the Matrimonial Causes Act (Chapter 5:13), the court's power under section 7(1) extends to "the assets of the spouses" - meaning all assets owned individually or jointly at the time of dissolution - not merely "matrimonial property". Property that has already been sold and is no longer in existence cannot be subject to a distribution order, absent proof that the sale was made in bad faith. In marriages out of community of property (the default position in Zimbabwe since 1929 under the Married Persons Property Act Chapter 5:12), spouses are legally entitled to own and dispose of property in their individual capacities. The court's wide discretion in distributing assets must be exercised considering all equitable factors, including: assets already awarded to parties, who funded and registered property, current use of assets, and the overall fairness of the total distribution to ensure one party does not receive everything while the other receives nothing.

The court observed that while indirect contributions and needs of parties have in some cases outweighed direct financial contributions (citing Usayi v Usayi 2003 (1) ZLR 684 (S) and Govati Mhora v Emmaculate Mhora SC-617-18), courts must guard against one spouse being awarded "everything" while the other is left with "nothing". The court noted it would be "unreasonable for the defendant to be allowed to have 'everything' with the plaintiff remaining with 'nothing'." The court also observed that in weighing distribution, practical considerations matter - such as the fact that selling the Pathfinder would be undesirable when the plaintiff is currently using it, both parties already have vehicles in the UK, and the costs of shipping and duty paid by the plaintiff approach the open market value of the vehicle. The court commented that despite conflicting versions of events, the exercise of discretion must focus on equities and what is just and reasonable in all circumstances.

This case reinforces important principles in Zimbabwean matrimonial property law: (1) the distinction between "assets of the spouses" and "matrimonial property" under section 7(1) of the Matrimonial Causes Act; (2) that assets already disposed of and no longer in existence cannot be subject to distribution orders; (3) the broad discretion courts have in distributing assets must be exercised considering all equities, including assets already awarded to parties; (4) that in marriages out of community of property (the default position in Zimbabwe since 1929), spouses retain individual property rights and can dispose of their property; and (5) courts will consider practical factors such as who is using property, who financed it, and the overall fairness of distribution when both direct and indirect contributions are weighed. The case is significant for its practical application of established matrimonial property principles in a cross-border divorce context involving parties residing in the UK but with assets in Zimbabwe.