Unpacking divorce, property sharing





When people get married, it is the expectation that they will be able to keep their vows especially, “ . . . till death do us part.”

The reality on the ground is that people walk out of their marriages regardless of duration. Sometimes other people do not even remember the vows they made on their wedding day. Do not get me wrong in this article, I am not saying people “should divorce”.

I am writing this article to help the people who are already going through this process, and the people who have tried everything to save their marriages and want to pursue this option.

This article is written using my professional background as a practising attorney. I have handled quite a number of matrimonial matters (divorce), and I still do. I just want to share some thoughts that may assist someone, and possibly even help reduce the backlog at the Courts now.

I am going to answer some common questions that often arise when it comes to the subject of divorce. The following are some of them.

What are the grounds for divorce?

What is the procedure for filing for divorce?.

How is property shared on divorce?

What is the law on custody of minor children on divorce?

I will also deal with the other ancillary issues that arise. I will avoid writing in strict legal terms like a lawyer I will simplify it so that it is easy to understand for the layperson.

Question 1: what are the grounds for divorce?

This is perhaps one of the key parts for this conversation. The law on divorce changed since the enactment of the ‘Matrimonial Causes Act (MCA) Chapter 5:13 on the 17th of February 1986’. Prior to that it was based on a ‘fault’ principle (only exception was insanity).

The recognised grounds for divorce under the old legal dispensation were;

Adultery;

malicious desertion;

Cruelty;

Insanity and;

Long term imprisonment

There are only “two grounds” upon which a divorce may be granted, and these are —

(a) irretrievable break-down of the marriage as contemplated by section five of the MCA; (FIRST GROUND) or

(b) incurable mental illness or continuous unconsciousness of one of the parties to the marriage as contemplated by section six of the MCA. (SECOND GROUND)

The issue that arises therefore is what is meant by “irretrievable break-down of the marriage”

Concept of irretrievable

break-down of the marriage

What are the factors that the Court considers in order to arrive at a decision on whether or not a marriage has irretrievably broken down? It is not just a breakdown of the marriage that the court is concerned with for purposes of a divorce, the Court has to be 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.

Some of the factors that the court may consider under the above head without prejudice to any other facts or circumstances which may show the irretrievable break-down of a marriage, are that—

(a) the parties have not lived together as husband and wife for a continuous period of at least twelve months immediately before the date of commencement of the divorce action; or

(b) the defendant has committed adultery which the plaintiff regards as incompatible with the continuation of a normal marriage relationship; or

(c) the defendant has been sentenced by a competent court to imprisonment for a period of at least fifteen years or has, in terms of the law relating to criminal procedure, been declared to be a habitual criminal or has been sentenced to extended imprisonment and has, in accordance with such declaration or sentence, been detained in prison for a continuous period of, or for interrupted periods which in the aggregate amount to, at least five years, within the ten years immediately before the date of commencement of the divorce action; or

(d) the defendant has, during the subsistence of the marriage —

(i)  treated the plaintiff with such cruelty, mental or otherwise; or

(ii)  habitually subjected himself or herself, as the case may be, to the influence of intoxicating liquor or drugs to such an extent;

as is incompatible with the continuation of a normal marriage relationship; as proof of irretrievable break-down of the marriage.

The subject of mental illness will be dealt with separately in other articles. This part is done on the assumption that all the parties are legally sane.

Question 2: the procedure for filing for divorce

Can you file for divorce on your own without a lawyer? The answer is yes. You can start and finish the process without a lawyer on a condition that you know what you are doing including the processes. You can also defend a divorce claim on your own.

The Jurisdiction of the Courts is covered under the MCA (also called “the Act” herein).  There are few points to note.

Act applies to both customary marriages under (Chapter 5:07) and civil marriages under (Chapter 5:11)

The Act DOES not apply to an UCLU (unregistered customary law unions)

The High Court — can hear cases for divorce for marriages solemnised under both Cap 5:07 & Cap 5:11 due to its inherent jurisdiction

Magistrate Court only deals with divorce cases for registered customary marriages under Cap 5:07- This has nothing to do with monetary jurisdiction but the type of marriage;

The MCA provides for additional jurisdiction when wife is the applicant/plaintiff

There are *two ways* of proceeding in *Matrimonial matters*, and these are

Opposed

This arises when the other party is contesting the divorce. There are a number of reasons why parties oppose divorce matters. Some of them include;

Attempting to frustrate the other party by causing proceedings to delay

Arrogance

Dispute on property issues

Custody of the minor children

Being in a state of denial.

Maintenance issues.

Unopposed

This arises when the parties are in agreement that their marriage has reached its end, and they want the matter to be treated as unopposed. *This is the best recourse in such matters when there are no contentious issues*. It’s faster, cheaper, and less acrimonious.

Depending with the speed of the parties, a divorce which is not opposed can be secured in a matter of weeks (two – three weeks) once all the papers have been signed. The attorneys handling the matters can prepare all the papers for the parties’ signature.

Matrimonial matters commence by way of summons which have been to be served on the Defendant personally by the Sheriff in terms of the rules.

I just want to share some thoughts on practical aspects of divorce;

Don’t just oppose a divorce

for the sake of opposing

Some people moved on a long time ago, but they remain slippery when it comes to winding up the affairs of the marriage. This explains why some divorce matters drag on for years before being finalized. Use settlement meetings to try to clear out any outstanding issues. This will save your serious time and money.

You cannot force the other party to stay in marriage

It is possible to be the only person in love when the other party is no longer interested. It is good to “fight” for your marriage, but sometimes you need to bury what is dead. Seek grief counselling should things escalate to this level. If the other party has filed for divorce, and you have attempted everything to salvage the marriage you need to learn to let go despite how painful it may be.

Do not be greedy

If you are married in terms of the Marriage Act [Chapter 5:11] your marriage is deemed to be out of community of property meaning you can individually own property in that marriage. It means you can give away the property in a will to anyone else who is not necessarily your spouse. The Supreme Court of Zimbabwe has confirmed this position.

To be continued online on www.sundaymail.co.zw

 You can also marry a person who owned their property before you got married. Do not claim what you did not acquire. This is different from what you jointly acquired. Some daring people even claim property which they know their spouse inherited elsewhere or got from a previous divorce.

Do not use children to fight your wars

It is unfortunate that children are often used as weapons in most divorce cases. Do not ruin the future of your children by making them bitter in the process. Fight as adults, but protect children as much possible from the effects and the process of divorce.

DO not punish children by not providing maintenance. Both parents have an equal contribution to maintain their minor children. Even during the divorce proceedings, provide for your children. Maintenance procedure must however not be used as an instrument for punishing someone for seeking a divorce. It’s not be a crime to be married.

I will discuss the bit on Property sharing in the next posts on my Facebook Page Attorney Arthur Marara.

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 attorneyarthurmarara@gmail.com