High Court rules adultery not a valid reason to deny property sharing with unfaithful wife

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A High Court judge has dismissed an application from Ashford Potera, a Harare man seeking to deny his ex-wife, Monica Chigariro, an equal share of their property and mansion in Borrowdale, citing her alleged involvement in an adulterous affair, reported NewsDay.

The couple, who were in an unregistered customary union since 1999, divorced in September 2022. Potera argued against the equal division of their assets, claiming saying he was the one formally employed.

However, Justice Amy Tsanga ruled in favor of Chigariro, saying Potera should have filed a separate claim for damages for adultery instead. Ruled the judge:

Defendant (Potera) mentioned a cellphone that was purportedly given to a boyfriend long after the property was built.

It is true that the affair may have sounded the death knell to their customary union, but there is no evidence that it had an impact on the property acquired together. Moreover, the property is registered in both names.

Where property is registered in both names, its distribution is generally equal between the owners unless there are compelling reasons for deviation from equal sharing.

To centre adulterous conduct in property sharing should only be “just” where the evidence is clear that it impacted on their marital assets and diminished their marital estate in some way.

The adultery may very well have no relevance to the proprietary issues and can often be the result of an already broken marriage.

Justice Tsanga said Chigariro contributed to the acquisition of the disputed property by making cross-border trips to obtain goods for resale, in addition to managing the home and caring for the family.

The judge further noted that the property is registered in both their names, affirming their joint ownership.

The judge said Chigariro has pressing needs, as she is responsible for their minor child and a major child who is still in school.

Justice Tsanga also stated that the duration of the marriage is a key factor in determining a 50% share of assets in lengthy marriages.

Justice Tsanga ordered that the property be divided equally, with 50% to be transferred within six months.

Potera was also directed to pay US$400 in outstanding maintenance for his minor child and US$50 monthly until the child turns 18.

Chigariro had requested equal sharing of their assets, citing their family life and the acquisition of both movable and immovable property during their marriage.

Potera argued that her contribution was minimal since she was not formally employed, initially offering only 10% and later 15% of the property.

He also claimed the marriage ended due to Chigariro’s alleged infidelity. Newsday