The High Court has granted a divorce to a couple that had entered into a complicated nuptial contract whose purpose was to exclude community of property in their possession or expectancy in an agreement that also clear neither of them to be answerable for the debts of the other.
The couple Marilyn and Kurauwone Chihota were granted the order nearly four years after the collapse of their marriage.
The civil matter was heard by Justice Amy Tsanga which centred on whether Marilyn is entitled to a 50% share of immovable property in Glen Lorne, Harare.
The parties married in November 2017 and separated in September 2021.
Both are professionals in the real estate field having met in 2015 in Botswana at a business convention, Marilyn being from Tanzania and Kurauwone from Zimbabwe.
Marilyn was living and working in Botswana then as a principal evaluator for a leading estate agency while Kurauwone was shuttling between Zimbabwe and South Africa.
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They married formally in South Africa on November 21, 2017. Before the registration of their marriage on that day and at the behest of Kurauwone, the two signed an ante nuptial contract which exclude community of property in their possession or expectancy.
The agreement stipulated that neither would be answerable for the debts of the other before or after the said marriage.
There was to be no community of profit or loss and each was to bear the losses happening to him or her and inheritances were equally excluded.
The construction of the agreement was to be governed and regulated by the laws of South Africa.
However, specifically excluded from accrual on Kurauwone’s part, was his half share in a property acquired from his previous marriage and the entire share capital of a company called Breeze Court Investments 55 Proprietary Limited.
On Marilyn’s part, all the property acquired by her was equally excluded and in particular 50% of the share capital in a company called Nopix Ventures Proprietary Limited registered in Botswana, as well shareholding in Norpix Properties LCC registered in Tanzania. Shares in Umoja Fund Limited PLC Unit Trust Scheme in Tanzania were also excluded.
According to the papers, although they married in South Africa, the parties never lived there, having agreed that settling in Zimbabwe would enable Kurauwone to be close to his then ailing parents.
When Marlyn first moved to Zimbabwe in September 2017, the lobola proceedings having been done in July of that same year in Botswana, they had started off staying with Kurauwone’s parents.
However, Kurauwone then found a job in Zimbabwe and the property in dispute was bought entirely by him using a loan from his employer.
The title deed of the disputed property was in the name of Kurauwone.
The house was purchased in May 2018 and they moved later that year after some renovations.
Marilyn had a son of her own and Kurauwone had two from his previous union who later joined them from South Africa.
In her application, Marilyn said she played a significant role in effecting the renovations and in her oral evidence before the court said she had advised her estranged husband on what kind of house to buy.
Marilyn submitted that the house was in Kurauwone’s name because it was bought with a loan from the employer which was deducted for repayment from his salary.
Marilyn said she was in charge of the renovations and had hired workmen who included the plumber and had been responsible for getting quotations and also chosen paint colours and landscaping.
When Marilyn moved to Zimbabwe, she said, the bulk of her furniture had gone to Tanzania and they had to acquire new furniture in Zimbabwe.
She submitted that she had contributed to holidays.
Her husband’s two sons had joined them from South Africa in 2019 and she would help in taking them to school.
Marilyn, however, admitted that technically the Glen Lorne property had not been acquired together.
Kurauwone on the other hand submitted that he had identified the property in dispute through an agent and it was after an agreement had been signed that he had advised his wife about it.
He confirmed his employer funded the purchase and that further renovation costs would be funded by a loan for which he would be responsible.
Kurauwone also submitted that he paid some of the needs that included painting, toilet cistern and remodelling of the kitchen, among others.
He also told court that his contribution towards the running of the home had been payment of school fees, school uniforms and consumables such as power and insurance.
Kurauwone said he also paid for the plaintiff's travels to Botswana as well as for her professional fees as an estate agent here in Zimbabwe.
In total, his employer forwarded US$420 000, made up of US$320 000 for the purchase price, US$30 000 towards transfer fees and US$30 000 for renovations.
Kurauwone acknowledged her ex-wife’s contributions towards beautifying the garden, explaining that she had the eye for it.
He, however, stressed that it is not equitable for the plaintiff to claim 50% of the property more so given the short duration of the marriage.
However, the judge said her court is satisfied that the marriage has irretrievably broken down.
Justice Tsanga said it would be superfluous to enter into an ante nuptial agreement providing for out of community where the matrimonial domicile is Zimbabwe and where the divorce proceedings are instituted since this is the factual position in terms of the law in Zimbabwe.
“Since it is a requirement of s 7(4) of the Matrimonial Causes Act that all circumstances be taken into account in arriving at what is fair, this court will therefore take judicial notice of the fact that when the parties married, their intention was to marry out of community of property.
“Section 7(4) outlines the cocktail of factors to be taken into account in relation to each party relating to both their present and future needs in the division of assets and maintenance orders.
“The plaintiff has a son at St Georges College, an elite private school in Harare. Both spouses will be saddled with educational expenses for their offspring for some time to come. Where they choose to educate their children is a pointer to what each thinks they can afford in joint partnership with the other parent for that child.
“I would generally say they are at par even if the defendant has one more child when compared to the plaintiff. Neither have a responsibility to each other’s children though during their time together the plaintiff says she assisted with the fees when there was a shortfall due to the volatile exchange rate."
Justice Tsanga said consideration of fifty-fifty shares particularly in marriage would be considered together with the lifespan of the marriage.
Tsanga then granted a decree of divorce, and awarded Marilyn 20% of the value of the property after deducting US$80 000 for debts owed by the defendant.
The judge further ordered that the Registrar look for a property valuator before they give her the 20% share.