The Sunday Mail
Tichawana Nyahuma
According to reports, the High Court at Harare handled 1 417 divorce cases in 2015 alone.
This is exceedingly alarming, especially considering that most of these marriages were celebrated in church.
It would be instructive if the Registrar General’s Department was to publish the statistics of the marriages that were registered in the same year.
I think as a nation, we should self-introspect and see we are getting it right and wrong.
Those statistics encouraged me to look at the law relating to divorce, particularly what the courts look at before granting a divorce decree.
To start with, the process leading to a marriage according to the Marriage Act (Chapter 5:11) or the Customary Marriages Act (Chapter 5:07) is not as cumbersome as the process leading to the termination of the marriage.
According to law, a marriage that was contracted in terms of Chapter 5:11 may only be terminated through summons issued out of the High Court either at Bulawayo or at Harare.
On the other hand, a marriage that was contracted in terms of Chapter 5:07 may be dissolved in the Magistrates Court sitting in the district in which the person against whom the divorce is sought resides.
Note, however, that if the parties’ matrimonial assets exceed the value of the jurisdiction of the Magistrates Court, then the divorce action would have to be handled by the High Court, notwithstanding the fact that the marriage is a Chapter 5:07.
The intricacies of divorce are more or less the same in most of the parts of the world. They are largely premised on a principle of law that is known as irretrievable breakdown of the marriage as opposed to fault or misbehaviour of one of the spouses.
It is in fact appropriately now termed “no fault divorce”. In other words, the spouse approaching the court seeking to obtain a divorce order is no longer required to prove that the other party committed certain acts of misconduct such as adultery or some other unconscionable deed which he or she finds disdainful.
All that has to be shown or proved is that the marriage has reached such a stage of disintegration that it can no longer be held together. In other words, the marriage would have irretrievably broken down.
The meat attaching to the bone of the concept of irretrievable breakdown of a marriage is set out in the Matrimonial Causes Act. In fact, according to the Act, the only other ground upon which a decree of divorce may be granted by a court is incurable mental illness or continuous unconsciousness of one of the parties to the marriage. The Act proceeds to prescribe certain other requirements that ought to be satisfied before a divorce may be granted on the basis of irreparable breakdown.
I shall revert to the circumstances of the concept of the irretrievable breakage of the marriage later but before doing so, I wish to pin-point that a marriage is a contract which is really in a class of its own.
It is unlike an employment contract, an agreement of sale, a construction contract or a hire purchase agreement where, if one of the parties fails, refuses, abandons or neglects to perform his side of the contract, the aggrieved party may approach the court for an order for specific performance or the payment of damages.
By its very nature, the marriage contract is mutual. If one of the parties decides for one reason or the other that he or she shall not be bound by it henceforth, no court can force or order that party to remain in the marriage. Note, however, that a person who is married in terms of Chapter 5:11 cannot consummate another marriage with another person as that is a criminal offence for which he is liable to be prosecuted.
Otherwise the concept of irretrievable breakdown of the marriage is set out in the Matrimonial Causes Act as I have already said. It is premised on the fact that if the court is satisfied that there is no longer any reasonable prospect of a restoration of a normal marriage between the parties, the court may order the termination of that marriage.
In considering whether the marriage has not only broken down but that it is no longer capable of being renovated, the court will look at the following factors or circumstances:
1. Whether the parties have not lived together as husband and wife for a continuous period of at least one year immediately before the commencement of the divorce proceedings.
Here, it is essential to stress that “not living together for a continuous period of at least one year” does not necessarily mean physically living apart because parties may actually live under the same roof for such a period but not “as husband and wife”.
For instance, if the couple indeed resides in the very same home and sleep on the very same bed for one year but maintain no sexual contact for that period because one of them refuses to engage, that may be taken as “not living together as husband and wife” and the court can and will grant a decree of divorce on that basis alone.
But otherwise certainly, physically living apart from each other for such a lengthy period of time may be a ground upon which a decree of divorce may be given, particularly if the parties also ceases to communicate.
2. If one of the spouses commits adultery and the innocent party considers that to be incompatible with the continuation of a normal marriage, the court will not hesitate to authorise the termination of that marriage. I emphasise that adultery is no longer a criminal offence. It remains only a civil wrong for which damages can be claimed from the third party who has intruded on the couple that is married in terms of Chapter 5:11.
3. In a case where one of the spouses is sentenced by a competent court to imprisonment for a period in excess of fifteen years or has been declared by a court to be a habitual criminal, the court entertaining the divorce action will consider that as ample evidence pointing to an irretrievable breakage of that marital association and will accordingly terminate the union.
4. If one of the parties to the marriage treats the other with cruelty or indignity and this includes mental ill-treatment, that will be seen by the court as an indicator of a marriage that has broken down beyond salvage in which event, a decree of divorce will be granted.
5. Where one of the spouses habitually subjects himself or herself to intoxicating substances such as alcohol or drugs to such an extent that the innocent spouse will consider that to be incompatible with the continuation of a normal marriage, the court will be inclined to dissolve the marriage.
This list is by no means exhaustive. What is alleged points to an ailing relationship for which a cure cannot be found in all probability.
But what if the court is not satisfied that the marriage has broken down beyond repair but is merely on the rocks from which it may be retrieved? Is the court able to order the spouse seeking divorce to remain at a table at which love, affection, companionship, consortium and other associated ancillaries are no longer being served?
If the court is of the view that there is still a reasonable chance that the parties may become reconciled through marriage counselling, treatment or upon reflection, it may stop or suspend the divorce proceedings and order that the matter be postponed to give the parties time to attempt to reunite, failing of which at a later date, the case may be resuscitated, leading to the eventual dissolution of the marriage.
Having said all this, it is quite ironic that almost all the divorce cases that come before the courts are mutual. There is usually no argument or disagreement between the spouses as to whether or not divorce ought to be ordered.
Trouble or difficulties only arise when the parties are at the stage of sharing their matrimonial property and also on the issue of custody and maintenance of the minor children of the marriage.
ln such cases, the court does not usually take into account the issue of who between the parties was at fault in ending of the marriage.
Fault is taken into account only in exceptional circumstances such as what occurred in the case of Marimba v Marimba 1999 (2) ZLR 87 (H) where it was said “…the blameworthy conduct of a spouse might affect the distribution of property where that behaviour has enabled the spouse to acquire a morally indefensible financial advantage”.
That aspect is not for discussion today, but for some time in the future.
In conclusion however, I wish to stress that the actual process of approaching the court for a divorce order is not so straight forward. Although it occurs quite frequently that a person who wishes for a divorce can proceed with the case as a self-actor, it is advised that the documents be drawn up by a lawyer who is in practice.
This is so because practicing lawyers know what has to be said in the papers. Usually, when self-actors approach the divorce court, the divorce is not granted because the papers will not be in order. Some self-actors have gone to court for eight or more times before the court terminates the marriage.
Tichawana Nyahuma is a legal practitioner and he writes in his personal capacity. Feedback to [email protected]
