In Zimbabwe the Matrimonial Causes Act (Chapter 5:13) provides for what is called judicial separation. Judicial separation is when a court issues an order directing the husband and wife to live separately without necessarily dissolving the marriage. In other jurisdictions like South Africa the court’s power to order judicial separation has been abolished. While it still remains in our statute books, it is submitted that judicial separation no longer serves any legal or practical purpose. Thus, in the case of Kumire v Kumire 2006 (1) ZLR 134 (H) the court had this to say;
“In changing the law thus, the legislators also effectively took away the power of the court to order the parties to go on judicial separation for a given period. Thus, if the court is satisfied on the evidence adduced before it that the marriage can be restored, it will simply decline to grant the divorce. The court cannot however order judicial separation in the sense the term was judicially interpreted, to give the marriage a chance, failing which the innocent spouse will be granted the divorce. That practice is inconsistent with the irretrievable breakdown principle.”
The parties can enter into a separation agreement themselves, or as most commonly happens, one party may ‘separate’ themselves. For this reason, it therefore becomes unnecessary for one to apply to court for judicial separation. Where the parties are on separation then issues of payment of maintenance and parental responsibilities and rights in respect of the children must be dealt with. The parties can agree between themselves on these issues failing which either party may approach the court for resolution.
Spouses can live separately even under the same roof. This occurs where spouses stay in the same house but are no longer living together as husband and wife. Conversely the fact that parties are physically living separately does not necessarily follow that they are no longer living as husband and wife. It is the fact of separation in the sense of the parties not living together as husband and wife which can be used as evidence of irretrievable breakdown of the marriage. The Act considers one year (minimum) of the parties not having lived together as husband and wife as a factor showing irretrievable breakdown of marriage.
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