Court Dissolves Union, Citing "Irretrievable Break...

Court Dissolves Union, Citing "Irretrievable Breakdown"

By Nyashadzashe Ndoro

Chief Reporter

High Court judge Justice Maxwell Takuva has officially dissolved the civil marriage between Liberty Matiza and Croginess Matiza (nee Judah), granting a decree of divorce.

The divorce proceedings, initiated by Liberty Matiza on March 6, 2024, cited irretrievable breakdown of the marriage. The couple has one minor child, born on April 24, 2024.

Custody of the minor child was awarded to Croginess Matiza, with Liberty Matiza granted reasonable access during school holidays. Liberty Matiza is also obligated to continue paying maintenance for the child as per a previous maintenance order (M08/21) issued by the Bindura Magistrates Court.

In addition to the existing maintenance, a joint pre-trial conference established that Liberty Matiza would pay school fees and buy school uniforms for the child.

During the trial, a central point of contention was Croginess Matiza's claim that Liberty Matiza took US$4,000 from their home upon separation and that she was entitled to half of this amount. Justice Maxwell, however, ruled against this claim.

In his analysis, Justice Maxwell highlighted that Croginess Matiza did not file a counterclaim, which would have been necessary to obtain an order against Liberty Matiza for the alleged money. Furthermore, the court found Croginess Matiza's evidence regarding the missing money to be unsubstantiated. Justice Maxwell noted inconsistencies in the alleged amount, which was initially stated as US$4,170 in her plea and later as US$4,000 in pre-trial documents.

The court also scrutinised Croginess Matiza's assertions of approaching Chief Kandeya's Court and the Ministry of Women's Affairs for assistance regarding the money. Justice Maxwell found no evidence, such as summons or judgments, to substantiate the claims regarding Chief Kandeya's Court, noting that the Chief's jurisdiction was questionable given the parties' relations.

Similarly, the court found no tangible evidence to support her engagement with the Ministry of Women's Affairs, such as official correspondence or witness testimonies.

Regarding Croginess Matiza's allegation that Liberty Matiza used the purported US$4,000 to purchase a car, Justice Maxwell found no evidence to support this claim, stating that no agreement of sale or other corroborating evidence was presented.

Justice Maxwell emphasized that "he who alleges must prove," and Croginess Matiza failed to discharge the burden of proof on a balance of probabilities.

“The basic principle at law is that he who alleges must prove," the judge stated.

"See Bonnyvies Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CCZ 6 of 2019 in which Malaba CJ stated that where an affirmative assertion of a fact is not self-evident, he who asserts has an obligation to prove the same.

"The Defendant had the obligation to prove that the Plaintiff took the money when he left the matrimonial home, that the issue of the money was raised before Chief Kandeya’s Court and the Ministry of Women’s Affairs and that Plaintiff bought a motor vehicle with that money. She did not discharge that onus and as such her claim fails. The evidence before the court is inadequate, and insufficient, to tilt the probabilities in the Defendant’s favor."

The court ordered each party to bear their own costs.