Ntombenhle Moyo v Maxwell Moyo

The parties were married on 12 July 1975 and had been married for over 37 years. Six children were born from the union, all now majors. On 10 May 2012, the applicant (wife) instituted divorce proceedings against the respondent (husband). Before instituting divorce proceedings, the applicant had moved out of the matrimonial home at 519 Scone Drive, Killarney, Bulawayo and moved to her daughter's house. She had apparently overstayed her welcome at her daughter's place. The applicant alleged that between 1992 and 1994 the respondent exhibited violent tendencies towards her. The applicant sought to return to the matrimonial home and wanted the respondent ejected. She argued the respondent could stay at their farm which had a fully furnished house and he had transport, and he previously used to spend weeks on the farm. The respondent was retired while the applicant was running businesses in the city. The respondent contended the applicant should stay with her daughters until the divorce was finalized or alternatively stay on the farm while he remained in the matrimonial home, though he wanted access to his farming activities.

• Whether the applicant wife was entitled to occupation of the matrimonial home pending the divorce proceedings
• Whether the respondent husband should be ejected from the matrimonial home
• What are the personal rights of a wife to the matrimonial home against her husband
• Where does the balance of convenience lie in determining occupation rights pending divorce

The provisional order was granted in amended terms: (1) Applicant entitled to take occupation forthwith of the matrimonial home at 519 Scone Drive, Killarney, Bulawayo; (2) Respondent prohibited from harassing applicant physically, verbally or by any other means. The initial prayer to eject the respondent and for costs of suit were not granted.

A wife has limited personal rights to the matrimonial home against her husband which can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. However, where the husband has not provided such alternative accommodation, and considering the balance of convenience, the court may grant the wife the right to occupy the matrimonial home pending divorce proceedings without necessarily ejecting the husband, allowing both parties to co-exist under the same roof, particularly where they have done so previously when the marriage had effectively ended.

The court observed that the parties had been co-existing under the same roof for a number of years when their marriage had already ceased to exist as a union, suggesting that they could continue to do so pending the final determination of the divorce. This observation suggests the court's view that parties in a failed marriage can maintain separate lives within the same household where practical considerations so require.

This Zimbabwean High Court case demonstrates the application of principles regarding a wife's personal rights to the matrimonial home during pending divorce proceedings. It illustrates the court's discretion to balance the interests of both parties by allowing co-occupation rather than ejection, particularly where no alternative accommodation has been provided. The case is significant for showing how courts navigate occupation disputes in matrimonial matters pending final determination of divorce proceedings, considering practical factors such as business interests, retirement status, and available alternative accommodation.