MUSIYAZWIRIYO v DEVE 2020 (2) ZLR 179 (H)

2020 (2) ZLR p179

Flynote

Family law – husband and wife – divorce – division of matrimonial property – divorce granted by foreign court – jurisdiction of High Court to distribute property – not empowered to make property distribution

The parties married in the United Kingdom in 2003. During the subsistence of the marriage they jointly acquired an immovable property in Harare. The parties' marriage was subsequently dissolved in May 2017 in the United Kingdom. In granting the decree of divorce the United Kingdom court did not deal with the distribution of the parties' property in Zimbabwe. Therefore, the applicant in 2019 approached the High Court seeking distribution of the property in terms of s 7 of the Matrimonial Causes Act [Chapter 5:13]. The applicant also averred in her founding affidavit that the High Court had jurisdiction to entertain the matter because the respondent was born in Zimbabwe, was a Zimbabwean citizen and considered Zimbabwe as his permanent home and domicile. She also averred that the property was situated in Zimbabwe and that she was a Zimbabwean citizen who at the time of the commencement of the application had been resident in Zimbabwe for at least two years immediately before commencement of the matter. The application was initially opposed. Later the respondent withdrew his opposition and the parties filed a deed of settlement resulting in the matter being referred to the unopposed roll. At the hearing of the matter, the court queried whether the applicant had pleaded the correct cause of action, that is, s 7 of the Matrimonial Causes Act. The applicant submitted that the application was premised on both the common law and the Matrimonial Causes Act, for the simple reason that the property was acquired during the subsistence of the parties' marriage and it was jointly owned. In dismissing the application, the court: