Lerato Nyandoro v Newton T. Nyandoro

The plaintiff sued the defendant for divorce on the basis of irretrievable breakdown of marriage. The parties had not lived together as husband and wife since 2000, approximately eleven years. They had three children together: Rujeko Nyandoro (who had attained majority age but was a student at Lupane State University), Mitch Nyandoro (born 5 January 1994), and Webster T. Nyandoro (born 21 November 1996). The plaintiff was living with all three children in rented accommodation. The parties owned one immovable property at stand number 311 Oregon Avenue, Newton West, Bulawayo, where the defendant continued to reside. The defendant was unemployed, had been retrenched from previous employment, and had reached pensionable age of 67 years. Over the years, the defendant had only contributed a meager US$50.00 towards maintenance of the three children. The plaintiff sought custody of the minor children, a share of the matrimonial home proceeds, distribution of movable assets, and lump sum maintenance equivalent to 15% of the defendant's half share of the proceeds from the sale of the matrimonial home.

• Whether the marriage had irretrievably broken down
• Who should have custody of the minor children
• How the matrimonial property (both movable and immovable) should be distributed
• Whether the court should order lump sum maintenance instead of periodical payments
• Whether maintenance should extend to a child who has attained majority age but is still receiving education (application of section 8(3) of the Matrimonial Causes Act)
• What percentage of the defendant's share of the matrimonial home should be allocated for maintenance
• Whether the defendant should be given an option to buy off the plaintiff's share of the matrimonial home and within what timeframe

1. A decree for divorce was granted. 2. The plaintiff was awarded specific movable assets as sole and exclusive property (including bedroom suite, washing machine, beds, television, refrigerator, freezer, oven, kitchen items, dining suite, lounge suite, etc.). 3. The defendant was awarded specific movable assets (including beds, lounge suite, television, radio, refrigerator, garden items, kitchen items, and US$1,000 being value of one of the cars). 4. The plaintiff was awarded custody of the minor children (Mitch and Webster) with reasonable access to the defendant. 5. The matrimonial house was to be sold with proceeds shared equally between the parties. 6. The defendant was to pay lump sum maintenance equivalent to 15% of his half share from the proceeds of the sale of the matrimonial house. 7. The defendant was granted an option to buy off the plaintiff's share within three months, failing which the plaintiff was granted an option to buy off the defendant's share within three months of such failure. If both parties failed to exercise their options, the house would be sold to best advantage. 8. The matrimonial house was to be evaluated by a reputable estate agent in Bulawayo. 9. Each party was to bear its own costs.

1. A court may exercise its discretion under section 8(3) of the Matrimonial Causes Act [Chapter 5:13] to extend a maintenance order beyond the age of 18 years where the child is receiving education or training beyond that age. 2. In terms of section 7(1)(b) of the Matrimonial Causes Act, maintenance may be ordered by way of lump sum payment rather than periodical payments where circumstances warrant, particularly where the paying party is unemployed with no prospects of employment but has access to realisable capital assets (following Sibanda & Anor v Sibanda 2005(1) ZLR 97 (S) at 100-101). 3. Where a matrimonial home is to be sold, the court may grant sequential options to purchase to both parties, with priority given based on factors such as current occupation, age, and practical considerations, balanced against the needs of the party caring for dependent children. 4. The quantum of lump sum maintenance should be determined based on a realistic assessment of the children's projected needs, including educational requirements, groceries, medical expenses, and utilities.

The court observed that the plaintiff had a history of working hard for the welfare of the children and expressed confidence that she would not abuse the lump sum maintenance given to her for the children's benefit. The court also made sympathetic observations about the defendant being in "the late afternoon of his life" when considering the appropriateness of granting him the first option to purchase the matrimonial home where he had resided for several years. The court noted it would "only be fair" to grant him this option despite his unemployment and advanced age. The court also commented that it was fair to extend a secondary option to the plaintiff given that she was staying with three children in rented accommodation, implying the importance of housing stability for the custodial parent.

This case is significant in Zimbabwean family law for its application of section 8(3) of the Matrimonial Causes Act [Chapter 5:13], demonstrating the court's discretion to extend maintenance beyond the age of majority where a child is receiving education or training. It also illustrates the court's approach to ordering lump sum maintenance instead of periodical payments where the paying party is unemployed with no employment prospects and has a poor history of maintenance contributions, but has access to capital through property proceeds. The judgment provides guidance on balancing the interests of parties in exercising options to purchase matrimonial property, taking into account factors such as current occupation, age, and the needs of dependent children. It reinforces the principle established in Sibanda & Anor v Sibanda 2005(1) ZLR 97 (S) regarding the appropriateness of lump sum maintenance where a party has access to realisable assets.