TAKAFUMA v TAKAFUMA 1994 (2) ZLR 103 (S)

Flynote

Family law — divorce — division of assets — principles and procedure to be followed

Headnote

When the spouses in this case obtained a divorce, a dispute arose as to the division of a major asset, namely, a house. The house was registered in the names of the husband and the wife and the wife had an undivided half share in the house.

Held, that in dividing up the assets the court must not simply lump all property together and then divide it up in as fair a way as possible. The correct approach is first to sort out the property into three lots, which may be termed "his", "hers" and "theirs". Then the court should concentrate on the lot marked "theirs". It must apportion this lot using the criteria set out in s 7(1) of the Matrimonial Causes Act 33 of 1985. It must thenallocate to the husband the items marked "his", plus an appropriate share of the items marked "theirs". It must then go through the same process in relation to the wife. Having completed this exercise, the court must finally look at the overall result and again, applying the criteria set out in s 7(1) of the Act, consider whether the objective has been achieved of placing the parties in the position they would have been in had themarriage continued, insofar as this is reasonably practicable and just, having regard to the conduct of the spouses.

Held, further, that in the present case the correct approach should have been to start by dividing equally the proceeds of the sale of the jointly owned house, and then to make adjustments in the light of the contributions made by the parties towards the purchase of the house and improvements upon the house, and income received by the parties from the house.