It is important that the Plaintiff states in the declaration the basis on which the court has jurisdiction to hear the matter otherwise the court will decline to hear the same. The court can raise the issue of jurisdiction on its own without prompting by the other party. Where the jurisdictional facts are properly pleaded the court usually proceed to entertain the matter.

As stated above, the primary basis for the court’s jurisdiction is the domicile of the husband at the time the action for divorce is instituted. The domicile of the husband may be by origin or by choice. Thus where the husband was born and bred in Zimbabwe and considers Zimbabwe to be his permanent home, then the court will have jurisdiction notwithstanding the fact that the husband is currently residing outside Zimbabwe. This is the case with most Zimbabweans in the diaspora. Domicile by choice occurs when one abandons his domicile by origin and resides in Zimbabwe with the intention to permanently so reside. Matrimonial domicile is therefore different from domicile for immigration purposes where the duration of the person’s stay is of great significance (see Latif v Latif  SC49/04).If the Plaintiff alleges facts pointing to the domicile of the husband and those facts are not denied or controverted by the Defendant there is no basis upon which the court should deny jurisdiction.

Reliance on domicile of the husband as the only ground of jurisdiction led to women having difficulties in approaching the court for dissolution of marriages where for instance the husband has abandoned Zimbabwe as his domicile of origin or was never domiciled in Zimbabwe in the first place. This led to the enactment of section 3 of Matrimonial Causes Act which provides as follows;

3 Additional jurisdiction

(1) Without prejudice to any other basis of jurisdiction which the High Court has, the High Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of marriage, where the wife is the plaintiff or applicant—

(a) if the wife has been deserted by her husband and, immediately before the desertion, the husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion; or

(b) if the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at least two years immediately before the date of commencement of the action and is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe; or

(c) if at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years and is still so residing.

 A number of issues arise from this section. First, the additional jurisdiction only applies where the wife is the Plaintiff or Applicant. Second, it is ‘additional jurisdiction’ which means where the husband is domiciled in Zimbabwe there is no need to rely on section 3 of the Act. Third, section 3(1)(b) relates specifically to a situation where the marriage was celebrated in Zimbabwe which simply means section 3(1)(a) and section 3(1)(c) can be relied on even where the marriage was not celebrated in Zimbabwe. In the case of a foreign marriage it is always advisable to have the marriage certificate authenticated by for example the foreign affairs ministry of the respective country.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2020

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2 Community of property excluded from marriages after 1 January 1929, except where agreements made to the contrary

 Community of property and of profit and loss and the marital power or any liabilities or privileges resulting therefrom shall not attach to any marriage solemnized between spouses whose matrimonial domicile is in Zimbabwe entered into after the 1 January,1929, unless such spouses shall, by an instrument in writing, signed by each of them prior to the solemnization of their marriage and in the presence of two persons, one of whom shall be a magistrate, who shall subscribe thereto as witnesses, have expressed their wish to be exempt from this Act.

Out of community of property means that property (movable or immovable) that is acquired by either spouse during the subsistence of the marriage is exclusively his or hers if it is in his or her name. It also means that one spouse is not liable for the debts of another unless the debt has been jointly acquired.

The effect of this matrimonial regime during the subsistence of the marriage was clearly articulated in the case of Muswere v Makanza 2004 (2) ZLR 262 (H) where the court held that:

“A wife cannot stop her husband from selling the matrimonial home or any other immovable property forming the joint estate if it is registered in his sole name even if she contributed directly and indirectly towards the acquisition of that property. Anachronistic as it is, the legal position at present is the right of a wife to the matrimonial estate, as determined by the principles of family law, are inferior to the rights of her husband in the same property as determined by the principles of the law of property.”

To put it in simpler terms, the wife does not legally require the consent of the husband to sell a vehicle registered in her name and neither does the husband. During the subsistence of the marriage nothing stops either spouse from disposing of or encumbering a property solely registered in his or her name. it also follows that the property of one spouse cannot be attached for the debts of the other.

Once divorce proceedings have been initiated the legal position changes and the provisions of the Matrimonial Causes Act (Chapter 5:13) will apply. Generally in terms of this Act both his and her property will be regarded as assets of the spouses subject to distribution (refer to article on division of assets of the spouses)

Before the solemnisation of the marriage parties can exempt themselves from the application of the out of community matrimonial regime by signing an instrument in the presence of two witnesses one of whom should be a magistrate (antenuptial contract). This instrument should be in the form provided and should be registered at the Registrar of Deeds.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2020

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The ‘new law’ changed the guilty principle and introduced the ‘no-fault divorce’. There is no need for the court to look at who is at fault or who is innocent. Essentially even the ‘guilty’ party can set up his or her own fault and successfully sue for divorce.

Section 4 of the Act gives only two grounds for divorce and these are;

• irretrievable break-down of the marriage, or
• incurable mental illness or continuous unconsciousness of one of the parties to the marriage

These grounds are further explained in sections 5 and 6 of the Act respectively. The court will grant a divorce on the basis of irretrievable breakdown of the marriage ‘if it is satisfied that the marriage relationship between the parties has broken down to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between them.’ The Act goes on to list the factors that may be considered by the court as pointing towards irretrievable breakdown of the marriage. The factors listed are not exhaustive and these are;

• not having lived together as husband and wife for at least 12 months,
• adultery,
• imprisonment for specified periods or declaration as a habitual criminal,
• cruelty, mental or otherwise and drug abuse.

With regard to the second ground of divorce, that is mental illness or continuous unconsciousness, it is a requirement that expert medical evidence be produced.

Once evidence is established that the marriage has irretrievably broken down it is not necessary for the court to enquire whether there is misconduct or fault by either party. If on the day of the trial the Plaintiff persists with his/her claim that the marriage has irretrievably broken down the court cannot order the parties to remain married even if the Defendant insists that he/ she still has love and affection for the Plaintiff.

In terms of section 5(3) of the Act the court may in appropriate circumstances postpone the matter if there appears to be a possibility of reconciliation. In most cases where one takes the decision to sue for divorce they are unlikely to consider reconciliation. This is not to say there are no cases of total reconciliation that may occur especially where both parties are willing and voluntarily go for counselling. Evidence has to be adduced to prove that after the filing of the summons the parties reconciled and are now living as husband and wife. As an example pregnancy after a summons for divorce has been filed may not necessarily point to a possibility of reconciliation if the Plaintiff persists with his prayer for divorce.

While the issue of fault is not relevant to the existence of the grounds of divorce it may be necessary when dealing with ancillary issues such as property sharing, custody and maintenance. This is because of section 7 (4) of the Act which in part provides as follows;

“and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

 It has been held that the misconduct must have been obvious and gross otherwise and the principle is left to judicial discretion. The overall principle is the fair and just division of the assets of the parties and not to penalise one party for an unhappy marriage.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2019

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26 Marriage

The State must take appropriate measures to ensure that—

(a) …………

(b) ………….

(c) there is equality of rights and obligations of spouses during marriage and at its dissolution; and

(d) in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses

An unregistered customary law union is also recognised for maintenance purposes in terms of section 6(3) of the Maintenance Act (Chapter 5:09). The maintenance court is enjoined to have regard to the position that at customary law husbands and wives are primarily responsible for each other’s maintenance. This position has been reiterated in previously decided cases.

Maintenance cannot be used as a way of fixing one’s spouse or settling scores. Thus the court in making an order for maintenance must have regard to a number of factors including the standard of living of the parties, their means and responsibilities and whether the spouse claiming maintenance is able to work. With the emergence of a more ‘liberated and working wife’ the courts’ attitude towards the award of maintenance has been changing the world over. It is therefore not uncommon to find maintenance being awarded in favour of the husband.

In cases of post-divorce spousal maintenance it is now rare to find a court ordering payment of maintenance until the spouse dies or remarries. The court is guided by the Matrimonial Causes Act (Chapter 5:13) when dealing with post-divorce maintenance. The following general guidelines enunciated by Professor Hahlo are followed by our courts in determining post-divorce spousal maintenance in terms of the Matrimonial Causes Act:

• Marriage can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved.
• Young women who worked before marriage and are able to work and support themselves after divorce will not be awarded maintenance if they have no young children. If a young woman has given up work she will be awarded short term maintenance to tide her over until she finds a new job.
• Middle-aged women who have devoted themselves for years to the management of the household and care of the children should be given “rehabilitative” maintenance for a period long enough to enable them to be trained or retrained for a job or a profession.
• Elderly women who have been married for a long time and are too old to now go out and earn a living and are unlikely to remarry will require permanent maintenance.  

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2019

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