The fact is that while other people marry and wed, some people marry and eventually end up divorcing.
It is important to note at the outset that there are only two reasons that a court can consider for allowing married people to divorce. These are irretrievable breakdown and continuous unconsciousness or mental illness. This applies to both on customary law marriage as well as a civil law marriage.
In terms of irretrievable breakdown, divorce is granted on the basis that there are no reasons to believe or hope that the two parties will ever reconcile. It is important to understand that marriages under Marriage Act Chapter 5:11 are dealt with at the High Court either in Harare or in Bulawayo. Divorce cases under Chapter 5:07 that are polygamous marriages are dealt with at the High Court or Magistrates Court. The Matrimonial Causes Act (Chapter 5:13) looks at issues pertaining to divorce, property sharing, custody of children and maintenance.
The Ministry of Women Affairs, Gender and Community Development Family Laws Hand Book gives a detailed account of divorce and the law and its worth reading as it outlines various gender issues and how the law applies to these issues.
While there are various issues that can be considered under the irretrievable breakdown, some of the issues include cruelty to the mind and body, a good example here is domestic violence. The other partner might experience continual beatings and abuse. Excessive drinking or taking drugs can be a good reason for divorce to be granted. Another reason is if the married couple fails to stay together under one roof as husband and wife for a period of one year or more then the couple can divorce. If one partner commits adultery and the other partner fails to accept or forgive the act then the latter can apply for divorce. Yet another major reason for divorce is prolonged stay in prison. These are just some of the major reasons but the court is not limited to these only.
In terms of mental illness or continuous unconsciousness, divorce is granted if a partner is mentally ill for a period of five years within a period of ten years before the date of the divorce proceedings or has been unconscious for a period of six months before the divorce. However, it is imperative to prove that the affected partner proves that the illness cannot be cured or that the patient cannot recover. Evidence from at least three doctors is also required, two of whom must be psychiatrists.
While it is solely the court that will finally grant an order of divorce, parties can agree on issues such as property sharing, custody of children and maintenance. Their agreement is binding and the court can actually consider their views. It is important however to note that parties are not obliged to make these settlements because at times women tend to agree for less in terms of property sharing.
It is advisable to have a lawyer. Generally lawyers are very experienced and this has a negative impact especially on women who are not workers. The Ministry of Women Affairs, Gender and Community Development works closely with Zimbabwe Women Lawyers Association (ZWLA) who assist women for free in legal issues and representation in court. The association has been of great assistance to women over the years including other law firms that work with the ministry, such as Bulawayo Legal Resource Centre.
Those who cannot afford lawyers’ fees can approach the Registrar of the High Court who appoints a lawyer for them in private practice. The appointed lawyer cannot withdraw from the case except with authority from the High Court. The Ministry of Justice and Legal Affairs has a Public Legal Aid Department as well in Harare and Bulawayo.
Divorce proceedings have to be followed properly by obtaining a divorce order from court. Some people proceed to remarry without following the correct channels.
This has negative repercussions in terms of inheritance. If a couple were married under Marriage Act Chapter 5:11 and then they separate for a long time and eventually the wife dies, the husband can actually use the certificate to inherit property.
In terms of property sharing, it is important to note that certain property cannot be shared, that is, property which the other party had before marriage, property inherited by either party from a deceased estate before or during marriage. Apart from that property which either parties got as presents or special gifts from friends or relatives as well as property belonging to the other in terms of tradition such as tsvimbo or intonga cannot be shared. Property is divided fairly and not equally.
In terms of the Matrimonial Causes Act, various factors are considered in terms of property sharing. These include consideration of property acquired during marriage and is available for sharing, what property each one has, what the children might need in future in terms of their education, the age, physical and mental condition of each partner and whether children are of sound health. The court also considers contributions made by each partner during marriage either through formal or informal employment. This includes contributions made by the wife in terms of taking care of the children, home and working in the fields. The court also considers the period the couple spent together and how much each will earn in future.
There have been various misconceptions in terms of divorce ranging from the belief that property is shared on equal basis, that if a woman is not formally employed she won’t get anything and that if a wife applies for divorce she will pay maintenance to the former husband. Some people believe that only a man can divorce his wife and that a person can refuse to be divorced. All these beliefs are not true. A woman also does not need gupuro or divorce token for divorce proceedings to start.
It is important for women who are usually at a disadvantage to ensure that their names appear on title deeds or agreement of sale of immovable property, and that they keep receipts for large and expensive items including also keeping accounts of expenses on food, medical treatment and school fees.
In the event of a divorce, a wife or husband can be asked to pay the other maintenance not permanently but looking at the period the other partner is financially stable. Maintenance cannot be granted to young couples who can still work or find employment. If the partner receiving maintenance marries someone else then the maintenance stops. The maintenance also stops when the receiving partner dies.
In terms of people married under the unregistered Customary Law Union there is no divorce because the marriage is not registered in the first instance but they can divorce in terms of their own customs and practices. This places women at a disadvantage as there is no need to have a marriage certificate.
The courts have not been very consistent in sharing property in unregistered customary law unions but they use what is called “unjust enrichment” where even if the marriage is registered, women also benefit from say a house purchased when the couple started staying together. The parties also share what they contributed to the marriage.
There is dire need for reform in terms of property sharing in an unregistered customary law union so that women benefit in the event of a divorce. It is advisable that women register their marriages in order to avoid problems highlighted above. The Ministry of Women Affairs, Gender and Community Development Family Law Handbook is a must-read.