KASSIM V KASSIM 1989 (3) ZLR 234 (H)

KASSIM v KASSIM 1989 (3) ZLR 234 (H)

Flynote

Family law — divorce — division of property following — whether misconduct during course of marriage can be taken into account — D Matrimonial Causes Act 1985 — s 7.

Practice and procedure — order of court — extent to which court may later expand on or supplement its own orders.

Headnote

Under s 7 of the Matrimonial Causes Act 1985, the court has power, following a divorce, to order a division of the matrimonial property, notwithstanding the strict legal title of the parties, in order to achieve a just settlement between them. As well as a number of other factors listed in s 7(3), fault for the breakdown of the marriage is a material consideration to be taken into account. Misconduct leading to the breakdown, however, must be of an exceptional character, not the minutiae of ancient domestic grievances. It must be conduct which was calculated to denude and did denude the family of its financial expectations from the spouse and must have resulted in the spouse's inability to contribute towards the matrimonial estate or to sustain and support the family. A grudging support or late settling of bills would not qualify.

The general principle is that once a court has duly pronounced a final judgment or order, it has no authority to correct, alter or supplement it, because it becomes functus officio. However, the principal judgment or order may be supplemented in respect of accessory or consequential matters, such as costs or the interest on a judgment debt, which the court overlooked or inadvertently omitted. This power is exercisable by a judge of the court, irrespective of whether he or she made the original order. The question of time is not material if the delay in seeking the supplementary order is not so protracted as to amount to an injustice to the defendant at the time the order is supplemented.