Thelma Homwe v Clive Majoni

The parties were married in 2013 and have three minor children aged between 18 months and 5 years. They no longer live together as husband and wife. The applicant (wife) moved out of the matrimonial home with all three children due to domestic violence and is renting accommodation elsewhere. The parties have a pending divorce action. The applicant is not formally employed but is the primary caretaker of the children. The respondent (husband) is a managing director of a company earning $7,938.72 per month with a real take-home pay of approximately $5,500.00 per month (after actual loan deductions). The applicant sought maintenance pendente lite of $1,200.00 for herself (including rental and domestic help), $500.00 for the eldest child, and $300.00 each for the two younger children, as well as $5,000.00 contribution towards litigation costs. The respondent claimed he could only afford $833.00 take-home pay due to loan repayments and was only paying $300.00 per month total for all children's maintenance. Evidence showed the respondent had doctored his payslip to misrepresent his actual deductions. The eldest child witnessed domestic violence and suffered post-traumatic stress disorder as a result.

• Whether the applicant was entitled to maintenance pendente lite for herself and the children
• Whether the High Court has jurisdiction to order child maintenance as part of maintenance pendente lite proceedings or whether this must be done in a maintenance court
• What constitutes a reasonable amount for maintenance pendente lite to allow continuation of the standard of living previously enjoyed
• Whether contribution towards litigation costs should be granted and in what amount
• Whether the court can consider rental costs as part of maintenance pendente lite where the applicant moved out due to domestic violence

The respondent was ordered to: (1) Pay $2,500.00 to applicant's legal practitioners as contribution towards litigation costs in the pending divorce and ancillary proceedings; (2) Pay maintenance pendente lite of: (a) $1,200.00 per month for the applicant; (b) $300.00 per month for minor child Manatsa Jayden Majoni (born 14 April 2013); (c) $300.00 per month for minor child Matipaishe Jayda Majoni (born 26 January 2016); (d) $300.00 per month for minor child Maitashe Jamal Majoni (born 27 July 2017); and (3) Pay costs of suit.

The binding legal principles established are: (1) Maintenance pendente lite may properly include child maintenance where the applicant spouse has custody of the children, as it addresses the disrupted lifestyle inclusive of children pending divorce finalization, without requiring separate maintenance court proceedings; (2) Rental costs incurred by a spouse who had to leave the matrimonial home due to domestic violence are a legitimate component of maintenance pendente lite; (3) Courts may exercise their protective powers through maintenance pendente lite awards to shield both spouses and children from abusive situations; (4) The standard for maintenance pendente lite is to allow continuation of a comparable standard of living to that formerly enjoyed, as a temporary stop-gap measure pending divorce; (5) Maintenance pendente lite does not require the same degree of precision and exactitude as post-divorce maintenance, allowing courts to take a more robust approach to assessment; (6) Courts will scrutinize financial evidence carefully and reject attempts to mislead through doctored documents showing artificially reduced income or inflated expenses.

The court made important observations about domestic violence and children: (1) It is not healthy or desirable for children to witness violence as it has detrimental effects on them; (2) The court noted with concern that the five-year-old child who witnessed the assault on his mother suffered post-traumatic stress disorder; (3) The court commented on the unrealistic picture the respondent had of what it costs to look after children, noting that costs of day-to-day living have gone up astronomically; (4) The court observed that a spouse has absolutely no obligation to assist the other spouse's parents to litigate their own matters; (5) The court noted that shielding children from violence by seeking alternative accommodation is justified and the court must come to the aid of a spouse who has incurred such costs by granting maintenance pending divorce.

This case is significant in Zimbabwean family law for establishing that: (1) maintenance pendente lite claims can properly include child maintenance where the applicant has custody, without requiring separate proceedings in a maintenance court; (2) rental costs incurred due to fleeing domestic violence can be included in maintenance pendente lite; (3) courts will exercise protective jurisdiction over both spouses and children by ensuring adequate maintenance to shield them from abusive situations; (4) courts will take a robust approach to detecting and rejecting attempts to mislead through doctored financial evidence; and (5) the principle that maintenance pendente lite is a stop-gap measure designed to maintain the previous standard of living extends to protect children from witnessing domestic violence. The judgment reinforces the court's willingness to use maintenance pendente lite as a protective tool in domestic violence situations and demonstrates judicial awareness of the psychological impact of domestic violence on children.