Paul Kapuya v Lilian Kapuya (nee Makaya)

The Plaintiff and Defendant married on 30 October 2015 under the Marriage Act [Chapter 5:11] after entering a customary union in 1989. The marriage produced two children who attained majority. They lived on stand 151 Adylinn Township 7 of stand 12 of Adylinn North (151 Purley Close Marlborough, Harare). The Plaintiff's father passed away on 31 August 1991. The parties built a 9-roomed house on the property, starting construction in 2002 and moving in during 2007. The property was transferred into the Plaintiff's name in 2000. The parties separated in 2016 when the Plaintiff moved out to Budiriro Township. On 19 October 2023, the Plaintiff issued summons for divorce claiming the marriage had irretrievably broken down. The central dispute concerned whether the property was inherited by the Plaintiff from his late father or was a marriage gift donated to both parties, and consequently how it should be distributed.

• Whether the property (stand 151 Adylinn Township 7 of stand 12 of Adylinn North) was inherited by the Plaintiff from his late father
• Whether the property was a marriage gift donated to both parties at their customary union
• What constitutes fair and equitable distribution of improvements on inherited property in divorce proceedings
• The application of section 7(3) of the Matrimonial Causes Act [Chapter 5:13] to inherited property

1. A decree of divorce was granted. 2. Defendant was awarded 50% of the value of the improvements effected on stand 151 Adylinn Township 7 of stand 12 of Adylinn North (stand 151 Purley Close, Marlborough, Harare). 3. The improvements were to be evaluated by a valuer registered with the Estate Agents Council to be agreed between the parties within seven days. 4. If parties failed to agree on a valuer, one was to be appointed by the Registrar of the High Court on request by either party. 5. Plaintiff was to pay the Defendant 50% of the value of improvements within 12 months of receipt of the valuation report or such other time as agreed by the parties. 6. Each party to bear its own costs.

Property acquired by way of inheritance, whether before or during the marriage, is excluded from the court's jurisdiction to divide, apportion or distribute in divorce proceedings by virtue of section 7(3) of the Matrimonial Causes Act [Chapter 5:13]. However, improvements made to inherited property during the subsistence of the marriage by both parties may be valued and distributed equitably between the spouses. The party claiming that property was a gift bears the burden of proving such donation to the satisfaction of the court. Inconsistencies between pleadings and oral evidence will be held against a party, and failure to challenge relevant affidavits results in the contents being taken as admitted.

The court observed that under customary law, it is rare and contrary to customary norms to hear of a couple being gifted immovable property after an unregistered customary union. The usual practice is for gifts of such magnitude to be given on the solemnisation of a marriage. The court also noted in passing the dispute about whether the Plaintiff's father could speak audibly in 1991 due to a stroke in 1982, but found this was not determinative since the Defendant claimed the donation was made in 1989, before the father's death.

This case clarifies the application of section 7(3) of the Matrimonial Causes Act [Chapter 5:13] in Zimbabwean law (which would be persuasive in South African matrimonial law contexts) regarding the treatment of inherited property in divorce proceedings. It establishes that while inherited property is excluded from the court's jurisdiction to distribute, improvements made to such property during the marriage may be subject to equitable distribution. The judgment also emphasizes the importance of consistency in pleadings and evidence, and the principle that what is not disputed in affidavits is taken as admitted. The case illustrates how courts apply customary law norms as a benchmark for assessing the credibility of claims regarding property donations at customary marriages.