Landinah Mufunani (nee Shumba) v Farisi Mufunani

The plaintiff and defendant were married on 25 March 1972 in Harare under the Marriages Act, 1964 (now Chapter 5:11). The marriage produced five children who are now adults and self-sustaining. During the marriage the parties acquired movable assets and an immovable property at No. 17 Dengu Street, Zengeza 1, Chitungwiza. The parties had been living separate and apart since November 2003, sleeping in separate rooms since about 2002, and last enjoyed conjugal rights in 1979. The plaintiff left the matrimonial home in 2012. Each party obtained a protection order against the other. The plaintiff sued for divorce on grounds of irretrievable breakdown and for equal distribution of the matrimonial property. The defendant initially conceded the marriage had broken down but at trial changed his position, arguing they should remain married based on their marriage vows that only death should separate them.

• Whether a decree of divorce should be granted on the ground of irretrievable breakdown of the marriage
• Whether the plaintiff is entitled to a half share in the matrimonial home at No. 17 Dengu Street, Zengeza 1, Chitungwiza

1. A decree of divorce was granted; 2. Each party retains movable assets in their possession; 3. Plaintiff awarded 50% share in No. 17 Dengu Street, Zengeza 1, Chitungwiza; 4. Defendant awarded remaining 50% share; 5. Parties must appoint estate agent within 30 days to evaluate the property, failing which the High Court Registrar shall appoint one; 6. Defendant given first option to buy out plaintiff within 60 days of valuation; 7. If defendant fails, plaintiff has 60 days to buy out defendant; 8. If neither exercises the option, property to be sold to best advantage; 9. Evaluation costs to be shared equally; 10. Net proceeds to be shared according to respective shares (50/50); 11. Each party to bear their own costs of suit.

1. Under Section 5(1) of the Matrimonial Causes Act [Chapter 5:13], irretrievable breakdown of marriage is objectively assessed by the court, and where a plaintiff insists on divorce, demonstrating loss of love and affection and inability to continue the marriage relationship, a decree must be granted even if the defendant wishes to remain married. Mere desire or hope by one party to continue the marriage based on marriage vows, without evidence of reconciliation or restoration of a normal marriage relationship, is insufficient to prevent a divorce decree. 2. Under Section 7 of the Matrimonial Causes Act, in distributing matrimonial assets, indirect contributions made by a spouse through domestic duties, looking after the home and caring for the family over a long marriage (four decades) are of equal value to direct financial contributions and warrant equal distribution of matrimonial property acquired during the marriage.

The court observed that the defendant's stance on wanting to remain married appeared disingenuous, noting that he had not applied his mind to the fact that the relationship between the parties was not conducive to continuation of a normal marriage relationship. The court also commented that the defendant tried to downplay the significance of the plaintiff's income-generating activities but nevertheless acknowledged that she contributed indirectly to family needs, thereby implicitly accepting she deserved a share in the property, yet he could not justify his claim for sole ownership or state what share he deemed fair and reasonable.

This case is significant in Zimbabwean matrimonial law as it reinforces the objective test for irretrievable breakdown of marriage under the Matrimonial Causes Act, confirming that a unilateral desire by one party to divorce is sufficient even where the other party wishes to remain married based on marriage vows. The judgment also demonstrates the court's approach to equitable distribution of matrimonial assets, particularly in long marriages (over 40 years), recognizing that indirect contributions through domestic duties and homemaking over decades are equal in value to direct financial contributions. The case provides practical guidance on property distribution where parties cannot afford to buy each other out, establishing a structured mechanism involving valuation, sequential buy-out options, and eventual sale.