CIV/T/591/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TUMAHOLE
JULIUS THAMAE PLAINTIFF

V

MANKHALA
LEONEA THAMAE DEFENDANT

Before
the Hon. Chief Justice B.P. Cullinan.

For the
Plaintiff : Mr. H. Nathane

For the
Defendant : Mr. N. Putsoane

JUDGMENT

Cases
referred to:

1. R v
   Pan der Merve (19 52)1 S.A. 647(0);
   

   
   

2. Van
   Lutterreveld v Engels (1959)2 S.A. 699(A); .

   
   

3. Murison-
   v Murison (1930) A.D. 157;

   
   

4. Monapathi
   v Monapathi C of A (CIV) No. 18 of 1989, Unreported; . :

   
   

5. Gates
   v Gates (1940) N. P.D. 361;

   
   

6. Smith
   v Smith (1937) W.L.D. 126.

   
   

The
parties were married on 25th April, 1966. They cohabited until May
1966, when the plaintiff returned to his employment on the
mines. A
male child of the family, Thamae Thamae was born to the defendant on
10th September, 1966, as a result co-habitation before
marriage.
Unfortunately the child was short lived, and died on 20th September,
1966. Thereafter, in October 1966, the defendant
left the matrimonial
home, that is, the home of the plaintiff's mother, and never
returned.

The
plaintiff ultimately filed an action for divorce, based on malicious
desertion, almost twenty-two years later, in 1988. The
defendant
filed a plea claiming that the plaintiff had constructively deserted
her, in that he had advised her to return to her
maiden home, due to
"continuous quarrels between her and her mother-in-law",
saying,"that he would fetch her as
soon as he found another
place of residence, but up to date plaintiff has not done so".
When it came to the hearing, however,
the Court was advised that the
matter was uncontested and, on the plaintiff's evidence, made an -
order of restitution of conjugal
rights.

There was
a further development on the return day.

3

Mr.
Putsoane, who had not drafted the plea, appeared for the defendant to
announce that the defendant had informed him that, contrary
to her
plea, in which she had admitted the plaintiff's claim that "There
are no children born of the said marriage",
another child had in
fact been born of the marriage. The plaintiff had sought an order of
forfeiture, so the Court proceeded to
hear evidence adduced by both
parties on the aspects of the children of the marriage and the
division of the matrimonial estate.
The aspect of divorce itself
remained uncontested and the Court, after evidence from the plaintiff
of non-restoration of conjugal
rights, granted him a decree of
divorce on the ground of the defendant's malicious desertion.

The
defendant claimed, in her evidence, that a further male child of the
marriage, Malefane Paulus Thamae, was born to her on 11th
December,
1971. The plaintiff testified that he had never co-habited with the
defendant or had sexual intercourse with her after
he had returned to
the mines in May, 1966, and that the said child was not his child. He
testified that the defendant never told
him about her second child,
that he did not

4

know the
child's name and that, he had learnt of the birth from the
defendant's brother, Makotoko, who also worked on the mines,
sometime
in 1972. It was not, incidentally, the plaintiff's case that he had
never seen the defendant after 1966: he testified,
that in those days
he was granted leave from the mines at intervals of two years and
that accordingly he met the defendant on his
return to Lesotho in
1967, 1969 and in 1971.

That was
his ultimate position, however. Initially, in his evidence in chief,
he testified that the returned to Lesotho "towards
the end of
1967", no more than that. In cross-examination he recalled that
he also "make a point of coming" to Lesotho
in 1972, after
the report from the defendant's brother of the birth of the
defendant's child, when he visited her parents in order
to verify
such birth. It was put to him that he had also returned to Lesotho in
1969 and again in 1971: he could not remember if
he had returned in
1969 and he denied returning in 1971. He denied communicating with
the plaintiff since 1966. He stated however
that "I met her
parents. I didn't meet her physically except once when she was with
her parents. Then he conceded "On
the

5

second
occasion I met her at a Local Court". After an adjournment, he
conceded that after he had gone to the defendant's maiden
home in
1967, he had again met her in 1969 "at the Chief's place".
While he had testified that he got leave every two
years, he again
denied that he had come to Lesotho in 1971. With the next question,
however, he conceded,

"In 1971 I came in February only for a week, and my boss wanted
me to come back quickly."

Then he
added,

"I just came home for a few days and went back."

That
contrasted with his evidence, in re-. examination, that, "After
each 24 months I used to get two or three months leave".
He
added however,

"It used to differ. In 1967 I came home as I had asked for some
few days from work. In 1971, I came home as I had just asked
for a
week from

6

work."

The
defendant's position was put to the plaintiff, but he repeatedly
denied that he had cohabited with the defendant during April
and May
1971 at Lnkhaloaneng in Maseru or that he was the father of the
defendant's second child.

The
defendant testified that she met the plaintiff twice in 1967, once at
Motsekuoa and once when he came to her maiden home at
Boleka. On the
latter occasion he asked her mother to release the defendant to him,
but her mother requested him to first fetch
his mother and sister,
with whom the defendant had quarrelled. The plaintiff departed but
did not return.

In 1969
the parties again met twice, the defendant testified. The plaintiff
once again came to her maiden homo, once again requesting
his wife's
return, saying that his mother was sick. The defendant's mother
refused his request and the defendant herself chose
not to return
with him, which latter evidence, incidentally, served to confirm the
aspect of desertion. The defendant testified-

7

further
that their second meeting in 1969 took place at the Local Court,
where she had instituted a claim for maintenance.

In 1970,
the defendant testified, she left her maiden home for Maseru, where
she found work in a shop at Lekhaloaneng. There she
rented a room in
a house owned by one Tseliso. Her brother Khathaso also Look lodgings
in the same house. There she was joined
by the plaintiff, while on
biennial leave, in March 1971. She testified that the plaintiff had
been informed of her whereabouts
by her brother Makotoko. The
plaintiff wanted her to return to the matrimonial home, but she
refused saying "he should first
bring his mother". He
offered to take her to other than his mother's home. To this she
agreed, saying nonetheless that "he
should go back and prepare",
but, she testified, "the case is still awaiting his mother and
sister".

Nonetheless,
as he had said that "We should make peace", and that he
wished "to console me, since he had not seen
me for a long time
due to his mother and sister", she "accepted his offer of
peace" and cohabited with him again
at Lekhaloaneng.

8

She
testified that the plaintiff stayed with her at Lekhaloaneng from a
date near the end of March, 1971, through April, to May
1971, when he
returned to the mines. During that time, they shared the same bed and
had sexual intercourse on a regular and frequent
basis. She recalled
that she must have conceived in April, as she failed to menstruate
towards the end of that month. She informed
the plaintiff of this
aspect and indeed he accompanied her on a subsequent visit to the
doctor, the latter apparently confirming
the pregnancy. In any event,
the plaintiff, she testified, was aware of her pregnancy when he
returned to the mines towards the
end of May 1971. She met him again
in June 1971 "at the bus stop", apparently in Maseru, when
she was "visibly pregnant".
She did not meet the plaintiff
again in 1971.

A male
child was born to her from that pregnancy on 11th December, 1971, and
he was named Malefane Paulus Thamae. The first two
names, being
Thamae family names, were supplied by the defendant's mother and the
latter's uncle Edward, when the defendant's brother
Khataso visited
them to inform them of the birth. The names were written on a piece
of paper addressed to the defendant's

9

mother.
Subsequently the plaintiff's mother performed customary rites upon
the newly born child, that is, at the defendant's maiden
home at
Boleka, even though such rites are usually performed, it seems, at
the home of the paternal grandparents. In this respect
the defendant
testified that such rites had also been performed at her maiden home
in respect of her first-born child. She testified
further, as to
customary rites, that Malefane had stood over the grave at the burial
of his grandmother, that is, the plaintiff's
mother. It, was put to
the defendant that the family had not allowed Malefane to pour soil
as custom demands: the defendant testified,
however, that this was
so, as Malefane was only a grandchild, and another child had been
nominated to represent the children in
the matter.

Despite
all this, the defendant testified that the plaintiff never returned
to her after May 1971, and that he had never maintained
the child
Malefane. For that matter, he did not maintain her. She had sued him
for maintenance in 1969 both in Chief Seeiso's court
and in the Local
Court, as he was home on leave at the time and she was aware of his
physical address. She failed to sue

10

him for
the maintenance of Malefane as she was not supplied with his address
by his family, while he was on the mines. She testified
indeed that
the plaintiff's mother was unable to supply the address, as the
latter maintained that the plaintiff was not writing
to her. It was
put to the defendant, of course, that her plea had made no mention of
the child Malefane. She replied that she had
informed Legal Aid
Counsel of this aspect, the plea having been drawn up some years ago
by other than Mr. Putsoane.

The
defendant called her brother Khataso as a witness. He corroborated
her evidence as to cohabitation with the plaintiff in March/April/May

1971, as he also lodged in Tseliso's house. There was one significant
difference however: it was his evidence that Tseliso's house,
where
the parties co-habited and he resided, was at Borokhoaheng in Maseru.
. He testified that the plaintiff had informed him
of the defendant's
pregnancy. His evidence as to dates was somewhat confused, differing
from that of the defendant's in places:
he testified for example that
the plaintiff had departed in April 1971. But then I would not expect
his evidence to tally exactly

11

with that
of the defendant. Quite clearly, it did not tally when it came to
their place of residence: in this respect he maintained
that he
worked in the same shop as the plaintiff in Lekhaloaneng, but that
they both resided at Borokhoaneng, which apparently
is not adjacent
to Lekhaloaneng. In this respect also, another witness for the
defendant, Policewoman Mary Moeketsi, testified
that she had first
met the parties in 1984 and in particular she had met the defendant
and her child. Malefane, "at her (the
defendant"s) home in
Borokhoaneng". The witness herself was a neighbour of the
defendant, residing at Borokhoaneng.

As to the
registration of the birth of Malefane, the defendant testified that
"I registered the child's birth at Q.E. II Hospital"
in
Maseru. "The certificate is at home", she added, "I
can produce it, even to-day". Apparently the registration
there
referred was an administrative registration for the purposes of the
Queen Elizabeth II Hospital. Again, the certificate referred
to was
apparently a baptismal certificate, which was examined by both
Counsel that afternoon, but was not produced in evidence.
In any
event, it seems that there

12

had been
no statutory registration, as nine days later a birth certificate was
produced in evidence, which had been made but two
days earlier,
indicating that the birth had been registered on the same day, that
is, seven days after the defendant had concluded
her evidence. The
certificate indicates that Malefane Paulus was born of the defendant
on 11th December 1971 at Queen Elizabeth
i Hospital, the father's
name being recorded as that of the plaintiff. The defendant, however,
is recorded as being the informant.
As the birth was registered more
than a year after the birth (see section 15 of the Registration of
Births and Deaths Act, 1973)
the defendant was required, as a routine
administrative requirement, to swear an affidavit in the matter.
Nonetheless, the certificate
is but prima facie evidence of its
contents (see section 13 of the Act) and takes the case no further
than the evidence before
the Court. Indeed, the fact that the
defendant waited some 20 years to register the birth, must militate
against her. As against
that, the birth of the child was
administratively registered at the Hospital and both Counsel informed
the Court that there is
a baptismal certificate in existence, but the
Court has no knowledge in either case as to whose name was

13

was
supplied as being that of the father of the child.

Three
other unsatisfactory aspects arise in the defendant's evidence. There
is the aspect that her pleadings, as I have said, are
contrary to the
case she now wishes to present. While her evidence in the matter is
not supported, the point is that she now appears
before the Court and
testifies that the plaintiff is the father of her child.

Again,
there is the contradiction between the evidence of the defendant and
her brother as to the location of the co-habitation
between her and
the plaintiff in 1971. In this respect she testified:

"In 1970 I came to Maseru for work. I found work at
Lekhaloaneng. I was working in a shop. I lived at the residence of
one
Tseliso. I never met the plaintiff in 1970.

In 1971 we met in March. I met the plaintiff at Lekhaloaneng where I
stayed. We stayed together until I had this child Malefane

14

Thamae."

The
defendant explained that by the word "had" she had meant
"conceived". In any event, the passages quoted
indicate
that she both worked and resided at Lekhaloaneng at the time. ft may
be that the plaintiff did not consider it necessary
to differentiate
between her place of work and place of residence. It may be, however,
that she subsequently moved to Borokhoaneng,
where Policewoman
Moeketsi met her in 1984 and thus it may be that the evidence of the
defendant's brother Khataso is concocted,
that is, as to his
presence, and that he placed the cohabitation at Borokhoaneng, as
that at one stage was the defendant's home.
Even if the defendant's
brother is lying, however, that does not necessarily mean that the
defendant herself is lying.

A further
aspect is that of the duration of the pregnancy. The defendant was
quite emphatic that Malefane when born was 'full-term'.
She
maintained indeed that both her children were full term. She
testified:

15

"I reckon I conceived in first week of April. I went over 8
months. [Malefane was] born in the 9th month.

Thamae the first child was full term - normal weight. Malefane Paulus
was a big baby. He wasn't underweight."

Assuming
that Malefane was full-term, that would place conception early in
March, rather than April, 1971. It may be, however, that
some 20
years later., the . defendant cannot give exact evidence as to such
matters, It may be, for example, that she met the plaintiff
in
February, when he himself says he was in Lesotho, rather than March.

In any
event, those are the unsatisfactory aspects in the defendant's
evidence. But what of the evidence of the plaintiff? He was
clearly
evasive as to his movements to and from Lesotho. In particular he at
first continued to deny that he had come to Lesotho
in 1971, until
forced in cross-examination to admit that he had. In this respect his
evidence of taking only a week's

16

leave or
"a few days" leave in 1971, is inconsistent with his
evidence of two or three months' biennial leave.

The point
is that the plaintiff, even on his own evidence, pursued the
defendant on his annual leave in 1967 and again 1969. He
had not
deserted her; she had deserted him and clearly she, then, in 1971,
aged 28 years, was still attractive to him, aged 33
years. It is only
natural to expect therefore that he would again pursue her on his
annual leave in 1971. She was then removed
from her maiden homo and
her mother's influence and supervision and if he failed to entice her
back to his home, it would not be
surprising that he might wish to
spend his leave from the mines in the company of his wife at her
lodgings.

The point
is again that there is no evidence that the defendant ever gave birth
to other than the two children Thamae and Malefane.
It is surely then
a coincidence that in twenty-five years of separation from the
plaintiff, she gave birth to only one child, Malefane,
whose
conception took place at a time when the plaintiff was on biennial
leave in Lesotho.

17

There is
again the aspect of the. child's three names, demonstrating a link
with the plaintiff and his family, and in particular
demonstrating
that the defendant had maintained ab initio that the plaintiff was
the father of her child. It was the defendant
who deserted the
plaintiff in 1966 and did not wish to return to him. I imagine that
if it was the case that, five years later,
she had given birth to
another man's child, she would not wish to give the child the
plaintiff's name, but rather her own maiden
name, or the name of the
putative father. Instead of that we have the evidence that Malefane
attended the funeral of the plaintiff's
mother. I can well understand
that he was not allowed to pour soil, as plainly the plaintiff did
not wish to acknowledge paternity.
Nonetheless, the very presence of
Malefane at the graveside and his very wish to pour soil, is
indicative of the consistency of
the defendant's position throughout.

It was
the plaintiff's own evidence that he "made a point of
returning" to Lesotho in 1972, to verify the birth of Malefane.

That I consider would have been somewhat unusual behaviour if the
defendant, a wife

18

estranged
and separated for over five years, had given birth to another man's
child. If the plaintiff was so concerned with such
adultery, why then
did he wait some seventeen years before filing suit for divorce and
in particular, why did he not allege adultery
in his pleadings? Mr.
Nathane submits that that was a matter . within the discretion of the
plaintiff. Of that there is no doubt.
But it was clear all along to
the plaintiff that the defendant maintained that Malefane was his
child. The presumption of legitimacy
applied, and the onus was
clearly upon the plaintiff to disprove legitimacy, and in that event
to frame his pleadings accordingly.
The suggestion then arises, that
the plaintiff at a distance on the mines in South Africa, wished to
evade his responsibility in
respect of Malefane, and that he delayed
seventeen years in filing action, as he did not wish to give rise to
such aspects before
the Court and hence when he did file, action it
bore no reference to any alleged adultery.

It will
be seen therefore that there are inconsistencies, in the evidence for
both parties. When it comes to credibility, I consider
that the
defendant

19

fared
better than the plaintiff, who as I have said was plainly evasive and
contradictory in places. But I do not see that that
is the ultimate
test. At the end of the day, as I have said, the onus lies upon the
plaintiff, on a balance of probabilities, to
disprove legitimacy (see
e.g. R v Kan der Merwe (1) and Kan Lutterveld v Engels (2). That
being the case, 1 am not satisfied that
Malefane's birth was other
than legitimate. 1 have not been asked for a declaration in the
matter. Suffice it to say that 1 find
that the child Malefane Paulus
Thamae, born of the defendant on 11th December, 1971, that is,
conceived and born in lawful wedlock
is the legitimate son of the
plaintiff.

I turn
then to the aspect of forfeiture. There is a prayer for such in the
statement of claim and the Court has no discretion in
the matter
(Murison v Murison (3) at p. 161). Accordingly I order that the
defendant forfeit the benefits of the marriage.

When it
comes to forfeiture, there was no evidence of the three valuations
referred to by the Court of Appeal in Monapathi v Monapathi
(4) per
Schutz P. at p.6.

20

Clearly
the plaintiff was chiefly to blame for this situation, as he adduced
no evidence whatever in chief as to the matrimonial
estate. The
defendant testified that the plaintiff had acquired some livestock
before they separated, and tried unrealistically
and unnecessarily to
persuade the Court that the identical livestock and their progeny
were still in existence 25 years later.
In any event neither party
put any value on the contents of the matrimonial estate. The
plaintiff claimed that when the defendant
departed in October, 1966,
she took matrimonial property with her. He was on the mines at the
time. His sister, Mrs. Mamabolaoane
Tsobo, was present in the
matrimonial home at the time, and she testified that the defendant on
two occasions removed property:
she carried the property, however, on
her head and Mrs. Tsobo's evidence indicates that the defendant took
no more than clothing
and bedding and some pots and pans, though the
defendant denied taking any utensils:

The
defendant testified that the matrimonial home contained a 3-door
kitchen unit, table with 4 chairs, bed, wardrobe, lounge suite
and
also 8 sheep, 4 head,of cattle and 2 horses. The defendant herself
testified

21

however
that

"All the property I have mentioned was bought by my husband. It
remained behind when I left. They were his property as he
used to
give the money to his mother to buy them. She used to show me the
money saying be had said she should buy the animals and
after she had
bought she used to show them to me."

Again,
the defendant testified that the plaintiff commenced in 1966 to build
a house which he completed in 1983. The parties cohabited
for no more
than six months and it is the defendant's own evidence that she made
no , contribution to the property purchased by
the plaintiff and
presumably therefore to the building materials to start the building
of the house. Any property which she did
bring in, namely her
clothing and bedding, she subsequently removed.

In the
case of Gates v Gates (5), referred to in Monapathi (4), Selke J
observed at pp.364/365 that it was necessary to ascertain
"the
value of the joint estate as

22

it exists
at the dale of the order for divorce" and the value of the
contributions made respectively to the estate by each
spouse. The
learned Judge went on at p.365

to
observe:

"If, after such proof has been given, it appears that the
existing value of the defendant's contributions is equal, or greater

than, that of the plaintiff's, then there is no forfeiture in fact,
and the existing estate is divided between them in equal shares,

exactly as if no forfeiture had been decreed. If, on the other hand,
the value of the contributions proved to have been made by,
or on
behalf of the plaintiff, exceeds that proved to have been made by, or
on behalf of the defendant, then the forfeiture consists
of half of
difference between the values thus established."

In the
present case it can safely be said that during the first" six
months of the marriage the sole contribution to the joint
estate made
by the defendant was the clothing and bedding which she brought to
the matrimonial home. This she took away with her.
Thereafter, even
though the parties were separated, the Court is concerned not just
with the estate in the plaintiff's possession
but with the joint
estate, that is, including the property in the defendant's
possession, which formed part of the joint estate
as at the date of

23

divorce.
The Court has heard no evidence of any property in the defendant's
possession. That she was able to support herself is
evident: indeed
she also supported Malefane. She was employed during 1970 and 1971.
Thereafter it seems she sold fruit, as she
gave her occupation as a
fruit seller and she testified that she supported Malefane by the
sale of apples.

When it
comes to the value of the contribution of each party to the joint
estate, it can be said that the value of the property
in the
possession of, that is, owned by each party on the date of the order
of divorce, represents the value of the respective
party's
contribution to the joint estate (see smith v Smith (6)). The
practical effect of an order of forfeiture is that the guilty
party
retains the value of his or her contribution to the estate, except
where that contribution exceeds fifty per cent of the
estate: in that
event the guilty party retains no more than fifty per cent. Assuming
for the moment that the property owned by
the defendant"is
valued at less than fifty per cent of the joint estate, it seems to
me that the order of forfeiture would
be satisfied by ordering each
party

24

to retain
the property respectively owned by them.

The truth
of the matter is however that the property owned by the defendant
does not represent her sole contribution to the matrimonial
estate.
She has completely supported Malefane, a child of the family, for 21
years and indeed educated him. That contribution is
represented by a
diminution in the value of the property owned by her. To put it
another way, had the plaintiff supported Malefane,
the defendant
would have amassed more property. No doubt such aspect could be dealt
with by an order for payment of arrears of
maintenance of Malefane.
But it seems to me that such an order, made after 21 years, would be
unrealistic, involving extreme complexity
of calculation. In Gates
(5) Selke J. held at pp.365/366 that the Court was entitled to take
the services of the wife in managing
the joint household and caring
for the children into account in calculating her contribution to the
joint estate. I cannot see
that the defendant made any contribution,
in a monetary sense, to the management of the joint household, over a
period of only
six months in the home of her mother-in-law. But quite
clearly she made a significant contribution to the joint estate in

25

caring
for and in the maintenance of Malefane. The difficulty is to arrive
at a percentage of the value of the joint estate which
would
represent such contribution. Doing the best I can, I would, assess
that contribution at fifteen per cent of the value of
the joint
estate.

The
defendant's contribution to the joint estate is accordingly
represented by the value of the property owned by her, plus a sum

equivalent to fifteen per cent of the said property owned by the
plaintiff, that is, fifteen per cent of the joint estate. As the

order of forfeiture is made against the defendant, she is not
entitled to the benefits of the plaintiff's contribution: she is
of
course entitled to retain her own contribution, that is, the property
owned by her, plus an amount (or property in the same
value)
equivalent to fifteen per cent of the value of the joint estate, as
also representing her contribution. Should the property
owned by her
exceed in value fifty per cent of the joint estate, the joint estate
shall be divided equally between the parties.
Again, where the
property owned by her is less than fifty per cent of the joint
estate, but the addition of fifteen per cent of
the joint estate
would

26

have the
effect of increasing her share of the joint estate to more than fifty
per cent, then the additional sum will have to be
reduced so that the
defendant's resultant share of the joint estate shall not exceed
fifty per cent.

There is
then the aspect of the actual value of the property owned by each
party, and hence the actual value of the joint estate.
Not an iota of
evidence was adduced on this point. Clearly it is desirable and
would, us Schutz P. observed in Monapathi (5) at
p. 6, reduce costs,
if the parties were to agree such valuations. Failing such agreement,
however, I order that the property owned
by each party on the date of
the order for divorce be . valued by an independent umpire, the
identity of such umpire to be agreed
by the parties, or, in default
of such agreement, the umpire to be appointed by the Court.

When the
umpire has thus ascertained the value of the property owned as
aforesaid by each party and thus the value of the joint
estate, three
possible situations may arise, namely, where

27

(i) each party owns fifty per cent of the joint estate, or

(ii) the properly owned by the defendant is valued at more than fifty
per cent of the joint estate, or

(iii) the property owned by the defendant is valued at less than
fifty per cent of the joint estate.

Those situations shall be dealt with as follows:

(i) where the joint estate is thus equally divided, the parties shall
each retain the property respectively owned by them; or

(ii) where the property owned by the defendant is valued at more than
fifty per cent of the joint estate, the plaintiff shall retain
all
the property owned by him and the defendant shall pay to the
plaintiff such amount, or shall transfer to him such

28

property, as shall have the effect of decreasing the defendant's
proportion of the joint estate and increasing that of the plaintiff

to fifty per cent thereof; or

(iii) where the property owned by the defendant is valued at less
than fifty per cent of the joint estate the defendant shall retain

the property owned by her and the plaintiff shall pay to the
defendant such amount, or shall transfer to her such property as
shall represent fifteen per cent of the value of the joint estate;
provided that where such payment or transfer by the plaintiff
would
have the effect of increasing the defendant's share of the joint
estate to more than fifty cent thereof, such payment or
transfer
shall be limited in extent to the effect that the defendant's
resultant share of the joint estate shall be equal to fifty
per cent
thereof.

29

As to
costs, the plaintiff as the main breadwinner should bear them. 1
award costs to the defendant.

Dated
this 14th Day of' February, 1995.

B.P.
CULLINAN

CHIEF
JUSTICE