The Sunday Mail
Legal Matters with Arthur Marara
The last article started a conversation on a subject that is affecting many people today — divorce. I must highlight once again that this issue is sensitive, and raises a lot of emotions, but truth be told if not handled properly it can result in incurable wounds. I promised that I was going to cover property sharing in the article, but I am going to divert a bit and cover the above topic which many people may be reluctant to act on. I will explain why. Once again, do not get me wrong, I am not saying people should divorce.
Do these phrases sound familiar?
“I am going through a divorce with my wife currently. We are no longer staying together . . .”
“I am going through a divorce with my wife. We are longer staying together currently for the sake of the kids.”
“My spouse is no longer in the country, we were married, but the marriage ended years ago. I am yet to finalise the divorce.”
The three statements among many have been used by men to start an affair. Many of the innocent partners will usually discover under cruel and harsh circumstances that someone was not being truthful about what they were going through in their life.
There are serious legal implications for being in a union with a person who has not divorced legally. I will talk about this in the next part.
In other instances, there are people who will be genuinely telling the truth about what they are going through but there are still legal ramifications.
*BEFORE YOU SAY YES . . .*
There are many people right now who have been customarily married to people who have not finalised their divorces. Additionally, some people even go ahead and acquire properties with their spouses who are yet to finalise their divorce, and others even have children?
The majority of the people who suffer from this set up are women. By operation of the law if someone is married under the Marriage Act (Chapter 5:11) (Formerly Chapter 37), they are bound to monogamy. What this means is that any subsequent unions are by operation of the law null and void. They are not recognised.
The situation even gets worse at inheritance, the other party to this union is not recognised as a spouse, meaning she cannot inherit from the estate of the deceased. The only beneficiaries are the children who are born out of the union as they have an entitlement to the estate of their father.
If you have not yet wound up your divorce, you are still legally married to this other person. This is not a neat situation. It needs to be sanitised if you really care about the well being of the person in your life, and children that come from that set up.
So, before you say yes, and “marry” a person who claims that they are going through a divorce the following needs to be abundantly clear,
1. The case number for the case — under what case number is the matter filed. By the way court documents are public documents, once filed, there is no privacy to talk about. Do not give to the “privacy” argument. What is private and confidential is “attorney-client conversations”, but once pleadings have been filed in the courts, they are now public, and anyone has access to them, unless if there is a court order barring third parties from the record.
2. There is no case that will not end. Divorce matters only drag mainly on issues to do with property, maintenance and custody, but not on whether or not the parties can divorce. There are of course people who oppose for the sake of opposing, I dealt with this in the previous article. Appeals in divorce matters, are mainly on property issues, and other ancillary issues.
3. Physically inspect for yourself the court record and establish the current state of affairs. If your resources permit, engage an attorney to do some due diligence for you and establish the correct position.
4. Most importantly, your person must finalise their divorce if ever there are proceedings pending.
Litigation in Zimbabwe is driven by the litigants. Your person and their attorney must actively pursue and prosecute and conclude the matter.
What if you are
already in this set up?
There are people who are already in this set up where they are actually in unions with people who are yet to finalise their divorces. Some are living together and acquiring properties.
How can you be protected in the event that your partner dies? Death is a reality, whether you are fit or not. This requires the active participation of the other party to ensure that you are protected in the event of their death.
The protection can be done in the following ways, among others;
1. The obvious one – finalise your divorce, and terminate your affairs with the previous spouse. Remember courts function with rules that have deadlines, make use of this to secure the finalisation of your matters.
2. Have a valid, last will and testament in place protecting the ones you love.
3. Set up a trust governing the affairs of your property and clearly defining your beneficiaries. This does not cost much compared to the suffering your loved ones will have to endure after you are gone, not to mention the legal costs involved. This will also serve as an estate planning tool.
4. Register the property that you acquire jointly to secure the interests of your other partner.
Sit down with your attorney, and he or she will explain the other options that you can pursue in order to protect your partner during the transition phase.
Finalise your divorce
This is the spirit of the article and applies to all people who are going through divorces. You need to actively push for the matter to be finalised. I explained some of the things that may cause delays in divorce matters in the previous article.
If you are legally represented engage your attorney on the following issues;
Where you are now with the matter?
What next step to take?
How long the next step will be?
Always get copies of every correspondence, and pleadings in your matter. They are yours. This enables you to have an appreciation of where your matter is. You can also even agree on the frequency of communication.
Please pay your lawyers
Settle invoices in time when they are sent to you. Many people want good services but they do not want to pay for them.
Discuss costs and billing from the onset of the matter, and ensure that you understand how you are going to be billed. Ensure that your file is sufficiently funded.
If you cannot afford a lawyer, actively pursue the conclusion of your matter.
I will discuss the bit on *Property sharing* in the next posts on my Facebook Page *Attorney Arthur Marara*.
Dear men: Do not be conveniently a bachelor
The marital status for many men, changes depending with who they are talking to. Many men have led unsuspecting women into unions which even involve extended families and bride price when they are fully aware of the fact that they have a marriage that is intact.
It is better for a woman to make a choice fully aware of the existing reality, and the consequences of such a set up like they are making themselves vulnerable for adultery damages, and they will not benefit anything in the event of death.
Imagine if someone was going to mislead your daughter, how would you feel?
I rest my case for this week!
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.
They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post.
Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate and family law attorney. As an attorney, he has worked over the years on matrimonial matters including but not limited to divorces, maintenance, custody and guardianship issues. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
