Siphiwe Joyce Moffat v Pheose Moffat

The plaintiff and defendant married on 3 October 1997 under the Marriage Act [Chapter 5:11], after being in an adulterous relationship for approximately 17 years. At the commencement of their relationship, the defendant was married to his first wife, Margret Cook, whom he had married on 28 May 1979 under the Marriage Act. The defendant's first wife died on 17 February 1996. The parties had three children together, all born during the adulterous relationship. During their relationship, they acquired three properties: (1) House No. 31 Drayton Avenue, Woodville, Bulawayo (purchased December 1984); (2) House No. 4026/2, Mkoba 9, Gweru (allocated to plaintiff in 1981 on rent-to-buy basis); and (3) House No. 94 Glassco Avenue North, Hamilton, Canada (acquired by plaintiff through mortgage in 2008). The parties separated in 2004. On 2 May 2013, the plaintiff issued summons seeking divorce and distribution of assets, alleging the marriage had irretrievably broken down due to over 8 years of separation, the defendant's adultery with two women (one being the plaintiff's relative), and loss of love.

• Whether all three immovable properties should be considered as assets of the spouses for distribution purposes under section 7(1) of the Matrimonial Causes Act [Chapter 5:13]
• What constitutes an equitable distribution of the three immovable properties between the spouses
• How to apply the factors listed in section 7(4) of the Matrimonial Causes Act in distributing the assets
• Whether property acquired before marriage or during an adulterous relationship should be included in the distribution of assets
• The extent of each party's direct and indirect contributions to the acquisition and improvement of each property

1. A decree of divorce was granted. 2. The plaintiff was awarded the dining room suite; the defendant was awarded the remainder of movable property in Zimbabwe. 3. The plaintiff was awarded as her sole and exclusive property: House No. 4026/2 Mkoba 9, Gweru; House No. 94 Glassco Avenue North, Hamilton, Canada; and a 25% share in House No. 31 Drayton Avenue, Woodville, Bulawayo. 4. The defendant was awarded a 75% share in House No. 31 Drayton Avenue, Woodville, Bulawayo. 5. The parties were ordered to appoint a valuator within 30 days to value the Bulawayo property, with the Registrar to appoint one if they failed to agree. 6. Valuation costs to be borne by parties according to their sharing ratio. 7. The defendant was granted the option to buy out the plaintiff's 25% share within 12 months of receiving the valuation report. 8. If the defendant failed to exercise the buy-out option, the property would be sold and net proceeds shared 25:75. 9. Each party to bear their own costs of suit.

The term "assets of the spouses" in section 7(1) of the Matrimonial Causes Act [Chapter 5:13] includes all assets owned by either or both spouses at the time of dissolution of marriage, whether acquired before marriage, during marriage, or after separation. Courts must consider all circumstances of the case as outlined in section 7(4) of the Act, including direct and indirect contributions, conduct of parties, financial needs and resources, and endeavor to place spouses in the position they would have been in had the marriage continued, insofar as it is reasonable, practicable and just. Property should be sorted into "his", "hers", and "theirs" categories before distribution, with the court then considering the overall result to achieve equity. The conduct of parties, including infidelity, is a relevant factor in determining the appropriate distribution ratio. Assets with significant liabilities may be awarded entirely to the spouse who incurred and is servicing those liabilities, particularly where the other spouse shows no willingness to contribute.

The court observed that the purported customary law marriage during the adulterous relationship was a nullity as the defendant was already validly married under the Marriage Act. The court noted that the use of the term "matrimonial property" tends to give the misleading impression that only assets acquired during the subsistence of the marriage when parties are still living together should be considered, which is incorrect. The court commented that had the Bulawayo property been the only immovable asset, it would have been distributed equally (50:50) between the parties. The court also noted that assistance provided during a relationship before marriage (such as the defendant's letter regarding the Mkoba property) may be viewed merely as a boyfriend assisting a girlfriend in times of hardship and not necessarily creating a claim to the property. The judgment contains implicit criticism of the defendant's attempts to claim properties to which he made minimal or no contribution, describing it as "trying to stretch his luck too far."

This case clarifies the interpretation of "assets of the spouses" under section 7(1) of the Matrimonial Causes Act [Chapter 5:13], confirming that it encompasses all assets owned by either or both spouses at the time of dissolution, regardless of when they were acquired (before marriage, during marriage, or after separation). The judgment reinforces the principle that courts have wide discretion in distributing assets and must consider all circumstances listed in section 7(4), including direct and indirect contributions, conduct of parties, and their future needs. It demonstrates the application of the Takafuma approach to property distribution and illustrates how courts deal with assets acquired during adulterous relationships that were later regularized into valid marriages. The case also shows how conduct, particularly infidelity, can influence the distribution ratio, and how liabilities attached to assets affect their distribution.