Thursday, 16 July 2020

ITS 50 : 50 : SUPREME COURT IN LANDMARK DIVORCE RULING


THE Supreme Court has made a landmark ruling that marriage partners are entitled to an equal share of the movable and immovable properties should the union dissolve regardless of their contributions for their purchase.

The ruling by the Apex Court thrashes the notion and belief that property sharing in divorce matters is only determined by a woman's direct contribution into the marriage.

The determination by Justices Ben Hlatshawayo, Tendai Uchena and Chinembiri Bhunu, was made in a matter involving Govati Mhora and Emmaculata Mhora on June 29, 2020.

According to court papers, Govati and Emmaculata were married in 1970 in terms of an unregistered customary law union.

But in 2010, Emmaculata approached the High Court seeking a decree of divorce, maintenance and distribution of property.

In the summons, she claimed a 50% share of a property at number 114 Lomagundi Road, Harare but Govati challenged her claim saying she did not have direct contribution to the acquisition of the said property.

During the trial in the High Court, Emmaculata submitted that during the subsistence of the marriage, the parties acquired movable and immovable property through joint and complimentary efforts in that, although she was not gainfully employed, she took care of the family as well as children born out of wedlock by Govati.

The High Court ruled in her favour, a determination which Govati sought to challenge in the Supreme Court.

In his judgment, which was supported by other judges, Justice Uchena said Govati confessed that he used to conceal information about properties he acquired during the subsistence of the marriage from his wife.

In addition, he lied to her that they were renting a house in Marondera where they stayed, but it later turned out that he had already purchased it.

"Apart from the Marondera house, the appellant (Govati) also owned another house in Highfield which he disposed of when the respondent (Emmaculata) was not aware of its existence.

"There is therefore a possibility that the appellant may have other properties the respondent did not claim due to ignorance of their existence as information on such properties was being deliberately concealed from her," Justice Uchena said.

"The appellant's contention is that he acquired these properties on his own and the respondent was not entitled to them and/or any knowledge about them.

"This is, however, not correct in view of the importance of indirect contributions in marriage as reiterated in the Usayi case, supra. The appellant's inclination towards hiding information about properties was a bid to frustrate a proper distribution of the same."

Justice Uchena concluded: "After a careful analysis of the cases referred to above, I am of the view that the longer the duration of the marriage, the lesser the weight to be attached to direct contributions as the value of the indirect contribution increases as the duration of the marriage increases." Newsday

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