A HIGH Court judge has dismissed an application in which a Harare man is refusing to equally share property and a mansion in Borrowdale, Harare, with his ex-wife on claims that she was involved in an adulterous affair.
The couple, Monica Chigariro and her ex-husband Ashford Potera, were in an unregistered customary union from 1999 before they divorced in September 2022.
Potera also challenged the equal sharing of their property saying he was the one formally employed.
High Court judge Justice Amy Tsanga, however, ruled in Chigariro’s favour.
Justice Tsanga said Potera should have, instead, filed a separate claim for damages against his ex-wife for adultery.
“Defendant (Potera) mentioned a cellphone that was purportedly given to a boyfriend long after the property was built,” the judge ruled.
“It is true that the affair may have sounded the death knell to their customary union, but there is no evidence that it had an impact on the property acquired together. Moreover, the property is registered in both names.
“Where property is registered in both names, its distribution is generally equal between the owners unless there are compelling reasons for deviation from equal sharing.”
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The judge added: “To centre adulterous conduct in property sharing should only be ‘just’ where the evidence is clear that it impacted on their marital assets and diminished their marital estate in some way.
“The adultery may very well have no relevance to the proprietary issues and can often be the result of an already broken marriage.”
Justice Tsanga said Chigariro also contributed to the acquisition of the property in dispute indirectly by embarking on cross-border trips to acquire goods for resale.
“This was in addition to running the home and looking after the family. Moreover, the property is registered in both their names, indicating that they both owned it,” the judge said.
“Apart from being a registered half owner, her needs are also pressing as she is the one looking after the minor child as well as the one who is a major, but is still going to school.
“There is absolutely no doubt that as a result of their union ending, there has been a major economic and impoverishing shift in Chigariro’s life that she and her children were used to.”
The judge further ruled that the union lasted for 23 years saying the duration of marriage is often a central factor in awarding a 50% share in lengthy marriages.
Justice Tsanga ordered that the property be shared equally, of which 50% should be availed within six months.
Potera was also ordered to pay US$400 in outstanding maintenance support for his minor child and US$50 monthly maintenance until the child reaches 18 years.
In her summons, Chigariro pleaded for equal sharing of their property on the basis that they had set up a family together, had children and acquired both movable and immovable assets during the course of their marriage.
Potera was adamant that her contribution was minimal on the basis that she was never in formal employment, whereas he was.
Potera’s initial offer was 10% and later 15%.
He also raised the issue of Chigariro’s alleged adulterous relationships, emphasising that the breakdown of their marriage was a result of infidelity.
He said they had parted ways because of continued infidelity.
