MARIMBA v MARIMBA 1999 (1) ZLR 87 (H)

Flynote

Family law — husband and wife — divorce — property division — effect of misconduct on division — extent to which misconduct may affect division — effect of fault on costs — provision for minor children — creation of trust for maintenance of minor children, administered by the Master

Headnote

Fault and misconduct are not relevant to the existence of grounds for divorce. Once evidence establishes the irretrievable breakdown of marriage, it is neither helpful nor proper to enquire into whether those grounds constitute misconduct. Misconduct is relevant to the question of whether a party is fit to have custody of minor children. Reluctant though the courts are to delve into the general issue of marital misconduct, they will not shrink from the task if it will assist in determining the best interests of children.

The related principle is more difficult to formulate when it is suggested that the conduct of a party should have a bearing on a property distribution order. While the court sets its face against invitations to delve into the minutiae of ancient domestic grievances, the relevant legislation specifically preserves the potential relevance of marital misbehaviour to the question of a division of the property. The difficulty is defining where it would be just to permit the misconduct of a spouse to influence an order apportioning the marital estate or for maintenance. For example, the blameworthy conduct of a spouse might affect the distribution of property where that behaviour has enabled the spouse to acquire a morally indefensible financial advantage. The principle is that, in its overall effort to order a fair division of assets or of maintenance, the court may permit considerations of the conduct of the parties to affect the final order to the extent to which that would be just. This is left to the court's discretion; but it is never just to penalise a person for an unhappy marriage.

The misbehaviour of a party may also be relevant to the question of an award of costs. Although in matrimonial matters the courts may be less inclined to order costs to follow a finding of substantial success, an award of costs against the misbehaving party may be granted to signify the court's repugnance at his behaviour.

Where the facts suggest the unreliability of a parent as regards future maintenance of the minor children, the court may order the creation of a trust for the minor children, out of a portion of that parent's share, administered by the Master, for the benefit of the minor children.