The Sunday Mail
Recent Press reports on an increase in the rates of divorce have caused alarm and despondency in Zimbabwe. Religious leaders have expressed concern over the breakdown of marriages, mostly from a religious perspective that when they marry couples in church, the two people promise to be together till death but sceptics have said it seems that it is now mostly till divorce does them part.
Newlyweds also become apprehensive on hearing the high divorce statistics. Social workers have attributed the increase in divorce rates to lack of communication, economic challenges, migration which sees families scattered all over the world and family interference. Divorce not only affects the wife and husband involved but also children who in most instances end up living with one parent who would have been awarded custody. Sometimes relatives are also affected as they are not sure how to relate to the ex-spouses. But what exactly are the legal provisions that relate to divorce?
The law that relates to divorce is known as the Matrimonial Causes Act Chapter 5:13. All divorces for persons married under chapter 5:11 (formerly Chapter 37) are heard in the High Court, either in Harare or Bulawayo.
Divorce cases for persons married under Chapter 5:07 (formerly Chapter 238) can be heard in Magistrate’s Court but the parties who are divorcing can opt to have their case heard in the High Court despite the marriage being a customary law one.
The courts, in granting divorces, operate using the concept known as irretrievable breakdown. In other words, before granting a decree of divorce, the court must be convinced that the marriage relationship between the parties has broken down to such an extent that there no reasonable prospects for the restoration of a normal marriage between the parties. But what factors exactly do the courts consider to determine the irretrievable breakdown?
The Matrimonial Causes Act states that courts can look at any other facts or circumstances which show that a marriage has broken down but it has specified certain factors. The first factor is normally called the one-year rule. If parties have not lived together as husband and wife for a continuous period of 12 months immediately before the commencement of the divorce action, this can be a ground for divorce.
Living together as husband and wife means performing those acts such as those expected of a husband and wife, for instance enjoying conjugal rights.
Adultery is also a ground for divorce and it is one of the most commonly cited grounds for divorce. The person who files for divorce citing this ground has to state and prove to the court that they consider the adultery as being incompatible with the continuation of a normal marriage relationship between the two parties.
There is an additional requirement that if the person who is alleged to be the third party committing the adultery with the person who is being used for divorce is named in the summons, they must be served with a copy of the summons.
Imprisonment can also be a ground for granting a divorce. The person suing for divorce can use the fact that the spouse they seek to be divorced from has been sentenced to imprisonment for a period of at least 15 years or has been declared a habitual criminal (person who lives on crime and cannot reform); or that the period that the person has been imprisoned if added up can aggregate to five years in the last 10 years before the divorce.
This ground is rarely cited and used in seeking a divorce. The person suing for divorce can also state and prove that during the marriage the other party treated them with cruelty – either mental or otherwise. The acts of cruelty differ from case to case, for instance it could be physical abuse in the form of beatings or emotional abuse – ridicule and name-calling.
If the other party has also subjected her or himself to intoxicating liquor or drugs such as to make the continuation of a normal marriage impossible, that can be a ground for divorce.
In some cases, one party might insist that they still love their wife or husband and they do not want a divorce but what the court considers is whether or not a marriage has broken down and that there are no prospects for the restoration of a normal marriage relationship. As long as the facts that show breakdown of a marriage, a divorce will be granted. There have been some cases, especially of women, insisting that they still love their husbands despite the husband having committed adultery or treated them with cruelty.
The courts can also consider the facts and if the court believes that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection, the case can be postponed to enable the parties to attempt reconciliation. This has been done, though in rare circumstances. If the reconciliation attempt does not work out, the case can be resumed with authority from the court and finalised.
Apart from irretrievable breakdown, the courts can also grant a decree of divorce on the grounds that the other party suffers from an incurable mental illness or continuous unconsciousness. The writer has not yet come across such a case where someone seeks divorce on those grounds. This requires sound medical evidence from three medical practitioners of whom two shall be psychiatrists appointed by the court. It is not an easy ground to allege and perhaps that is why persons seeking divorce do not use it.
Despite the social problems that divorces bring, it is best that married couples whose marriages have broken down seek to properly be divorced in the courts. There have been instances where parties just go on separation and sometimes even “marry’’ other people.
The problems surface when they pass away when the law looks at any other “marriage” entered into without properly divorcing as invalid. In other instances, there is a mistaken belief that the payment of “gupuro” or rejection token alone suffices in instances where there is a registered marriage. It is only the courts that can grant decrees of divorce for all registered marriages.
Slyvia Chirawu is a lawyer by profession. She is a Hubert Humphrey alumnus, a women’s rights and gender expert, a lecturer in Family Law and the Law of Succession and chairperson of the Private Law Department at the University of Zimbabwe and a member of the Estate Administrators Council of Zimbabwe. She writes in her personal capacity.
