The High Court has granted a divorce between Paul Kapuya and Lilian Kapuya (née Makaya), ruling that their Marlborough property was inherited by the husband and is therefore not subject to division, except for improvements made during the marriage.
Justice Fatima Chakapamambo Maxwell delivered the judgment following a contested trial over the ownership of Stand 151 Adylinn Township, also known as 151 Purley Close, Marlborough, Harare. The dispute centred on whether the property was inherited by Paul Kapuya from his late father or gifted to both spouses as a marriage gift under customary law.
Paul Kapuya told the court that the property was inherited from his father, who died in 1991, and that ownership was subsequently transferred into his name. He argued that while the couple jointly developed the property during their marriage, the land itself was excluded from distribution under the Matrimonial Causes Act.
He proposed that only the value of improvements made during the marriage be shared equally.
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Lilian Kapuya disputed this position, contending that the property had been gifted to both parties by her late father-in-law following their customary union in 1989. She maintained that the property had always been treated as the matrimonial home and proposed either subdivision of the land or its sale, with proceeds shared equally.
After considering evidence from both parties and their witnesses, the court rejected the defendant’s claim that the property was a marriage gift. Justice Maxwell cited inconsistencies in the defendant’s version and concluded that the property had been acquired through inheritance.
The court further noted that affidavits from the plaintiff’s siblings confirming his inheritance of the property were not challenged and therefore stood as admitted evidence.
In terms of section 7(3) of the Matrimonial Causes Act, assets acquired by inheritance are excluded from division upon divorce. As a result, the court ruled that only improvements made to the property during the marriage were subject to sharing.
Lilian Kapuya was awarded 50 percent of the value of the improvements. A registered valuer agreed upon by both parties is to assess the improvements within seven days, failing which the Registrar of the High Court will appoint one.
Paul Kapuya was ordered to pay the defendant her share within 12 months of receiving the valuation report. Each party was ordered to bear their own legal costs.
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