Wife upstairs, husband downstairs living arrangement ends as court orders Hubby’s buyout
By Fanuel Viriri
A divorcing couple from Philadelphia, Borrowdale, Harare have been living in their matrimonial home with the ex-wife occupying the upstairs wing and the ex-husband downstairs section, and the ex-wife has successfully won a High Court bid to buy out her former spouse.
The estranged wife, Tafadzwa Adelaide Mwale, who works at the United Nations and earns a higher salary than her husband according to court papers, wanted her ex-husband, Isaacs Yesake Mwale, out of the property, arguing she contributed far more towards its purchase and development and offering to buy him out.
The mansion in Philadelphia, Borrowdale was bought in August 2017 for US$68,000, registered in both names, with US$34,438.27 still owing to the developer. Mwale (Tafadzwa) told the court she took a US$25,000 loan from StanChart Bank for the deposit and funded the development of the 9-bedroom house through loans and proceeds from selling her CBZ shares, while her husband, a former transport officer at ZESA Headquarters who has been unemployed since December 2019, had made little contribution. She claimed 95 percent of the property for herself.
Her husband opposed and claimed at least 50 percent, arguing this was his only retirement home after selling his other houses in Chinhoyi, Gweru, Norton and Mutare to pay school fees. He told the court he contributed 80,000 bricks, stones and 30 tonnes of cement that went into the foundation, and produced quotations for timber, tiles, solar and gutters. He said he had put over US$40,000 into the couple’s joint account but could not produce bank statements because the bank wanted US$500 to retrieve them from 2017, and that as the “treasurer” his wife kept the invoices while he threw his away.
He conceded his wife had paid more financially but said his ZESA electricity benefit, which she continues to enjoy, and his indirect contributions as a husband for more than 13 years entitled him to half.
In a judgment Justice Phillipa Phillips granted a decree of divorce and held that while joint registration creates a rebuttable presumption of equal ownership, the court must depart from it where justice and equity require, considering both contributions and needs under section 7 of the Matrimonial Causes Act.
The judge said it would not make sense to award the husband a share he cannot sustain and that the wife’s financial prejudice would be greater, but that 5 percent was too little after a marriage of more than 13 years. The court awarded the wife 80 percent and the husband 20 percent, deducting 10 percent from an initial 30 percent assessment for the husband to relieve him of the obligation to pay the outstanding US$34,438.27, which the wife must now pay herself.
The court ordered that the stand be valued by an estate agent mutually agreed within 10 working days, failing which by the Registrar, and that the wife buy out the husband’s 20 percent share within six months of valuation, with the husband to sign all transfer papers and the Sheriff to sign if he fails, with each party bearing its own costs.
