Raymond Mwale Munyama v Alice Ndoudzani Munyama (nee Mapfidza)

The parties contracted a civil marriage on 1 July 2008 under the Marriage Act [Chapter 5:11] and had three minor children. In May 2014, the plaintiff issued summons for divorce. The parties had not lived together as husband and wife since 2012. At pretrial conference, the parties agreed that the marriage had irretrievably broken down, custody would remain with the defendant, an existing maintenance order would continue, and the plaintiff would have access during half of every school holiday. They also agreed that all movable property had been awarded to the defendant. The disputed issues for trial were: what constituted immovable matrimonial property and how it should be apportioned. The parties had acquired stands during the marriage: Stand 11524 Cold Comfort Harare, Stand 350 Juru Growth Point, and Stand 3050 Nyatsime Park Chitungwiza. Evidence showed that Stand 11524 was sold in 2008 to Dr Rita Mwale (before development) who then sold to Mangara Chirinda, as confirmed by the property developer. Stand 350 Juru had been sold. Stand 3050 Nyatsime had not yet been allocated. The defendant contested the sale of Stand 11524, claiming it was not authentic and insisting it remained a matrimonial asset, but provided no evidence to substantiate this allegation.

• Whether the disputed immovable properties constituted matrimonial assets available for distribution
• Whether Stand 11524 Cold Comfort was validly sold and thus ceased to be a matrimonial asset
• How matrimonial assets should be apportioned between the parties upon divorce

1. A decree of divorce was granted. 2. Custody of the three minor children (Callister Ruvimbo Munyama born 10 July 2006, Chancellor Munyama born 27 August 2008, and Nokutenda Munyama born 25 December 2009) was awarded to the defendant. 3. The plaintiff was granted access to the minor children during half of every school holiday as per the parties' arrangement. 4. The existing maintenance order MC 3103/13 was to continue to regulate maintenance. 5. The court declared there were no matrimonial assets to share. 6. Each party was to bear its own costs.

Under s 7(1) of the Matrimonial Causes Act [Chapter 5:13], only property that constitutes spousal matrimonial assets at the time of divorce is subject to division and apportionment between divorcing parties. Property that has been validly sold to third parties during the subsistence of the marriage, with proper documentation (sale agreements, cession agreements, and receipts), ceases to be a matrimonial asset and cannot be distributed between the spouses. Property of third parties is not subject to apportionment in divorce proceedings. Where a party alleges that a sale transaction is not authentic, the burden is on that party to adduce evidence to substantiate the allegation; mere speculation or assertion without supporting evidence is insufficient to impugn a properly documented transaction.

The court observed that the defendant's various inconsistent versions regarding the state of development at Stand 11524 (oscillating between claiming there was a cottage, that it was demolished, that there was a superstructure, and that she did not know what was there) undermined her credibility. The court also noted that the defendant's contention that the property could not have been sold to Dr Rita Mwale because they had "bad blood" was not a legally relevant consideration. The court remarked that insistence on sharing property that is, to the knowledge of the parties, unavailable is "not only illogical but unreasonable." The court further observed that even if the defendant's claim of contributing towards construction of a cottage through a loan was accepted, she agreed the cottage had been demolished and did not seek anything further in respect of it.

This case is significant in Zimbabwean family law jurisprudence as it illustrates the application of s 7 of the Matrimonial Causes Act [Chapter 5:13] regarding division of matrimonial assets upon divorce. It establishes that only assets actually owned by the spouses at the time of divorce qualify as matrimonial assets subject to distribution. Property that has been disposed of by valid sale to third parties, even during the subsistence of the marriage, cannot be apportioned between divorcing spouses. The case emphasizes the importance of documentary evidence in establishing property transactions and demonstrates that mere allegations without supporting evidence are insufficient to challenge properly documented sales. It also shows the court's approach to evaluating conflicting and inconsistent testimony regarding property ownership and development.