Author: nnlaw

Can the courts compel spouses to remain in marriage when the other party is insisting on divorce?

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Can the courts compel spouses to remain in marriage when the other party is insisting on divorce?

The aim of the courts is on the preservation of the marriage institution, family unity is important, but what if there is no longer love, affection and respect and one of the spouses no longer wants to be a party to that union.

The position is, the courts cannot force parties to remain in love. In a recent judgment, Muremba ruled that the courts have no power to compel couples to remain in marriage when one party insists on divorce even if the other party feels he or she is still in love. The fact that one is no longer interested in the marriage should be reason enough to end it. Why force a party into a relationship that he or she no longer wishes to be a party to, even if such party is strongly opposed to the divorce?

So as it stands, the court has no legal basis to force a relationship if it is not working and a party personally insists on divorce. Such decision must be respected by the courts. Marriage is not a prison, especially where no love, affection and respect no longer exists. A party to divorce proceedings should not be seen to justify to the courts why they want divorce. Once an application for divorce is filed, it is evidence that one or both parties to the marriage no longer want to be involved and the divorce must be immediately granted.

What implication does this have on the institution of marriage?. Is this law progressive or not?

SHOULD WE REALLY SUE SOMEONE

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Adultery damages

Should we really sue someone (an adult for crying out loud) for having an affair with a married man or woman?  Aren’t these adultery damages archaic? What is your take on these damages?

What does the law say pertaining these damages?

Adultery damages are legal. Justice Mwayera in a recent judgment ruled that, “adultery damages are a legal claim which is meant to protect the sanctity of marriage”. She stated that decisions of foreign courts to declare such damages unconstitutional were not binding in Zimbabwe. In terms of Zimbabwe policy and values, adultery remains wrongful and unlawful as it serves to compensate the injured party. She expounded that the marriage institution is founded upon morals and the Constitution which is the supreme law of the country that protects that very morally, underpinned relationship. Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim.”

Who can sue for adultery damages?

The type of marriage determines who can sue for such damages. In a Civil Marriage [Chapter 5:11], the husband or wife can sue a third party for the said damages. In a Registered Customary Law Marriage [Chapter 5:07], it is only the husband who can sue the third party because such marriage is potentially polygamous (it allows a man, if he so wishes to marry more than one wife but the woman cannot do so). Pertaining an Unregistered Customary Law Union (UCLU), this union is not registered but lobola has been paid, in this union, only the man can claim adultery damages since the union is also potentially polygamous and women in these unions have no right to sue for adultery damages.

Who can be sued for adultery damages?

Unfortunately the law provides that, it is only the third party who can be sued for adultery damages. The third party is the person who interferes into the marriage of the spouses.

South Africa recently outlawed these damages. Should we follow suit? Should spouses be responsible for protecting and safeguarding their marriage rather than making a legal claim against someone for having a consensual affair with her husband or his wife? Why sue the third party and not the adulterous spouse for adultery damages?.

SONIA R. FASHI

Fault factor in divorce

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A number of people have been asking if initiating divorce proceedings will not affect their proprietary rights and whether or not the court’s decision will be against the guilty party if a party in a divorce matter is the one who caused the divorce. I have decided to share with you colleagues on the fault factor in divorce.

Before the coming of the Matrimonial Causes Act of 1985, divorce laws in Zimbabwe were based on the fault factor. Grounds for divorce then were adultery, cruelity, insanity as well as long term imprisonment. Since 1985 Zimbabwe adopted a “no-fault” divorce. This is a divorce based on “irreconcilable differences” or an “irretrievable break-down” of the marriage which signifies that there is no hope for reconciliation of marriage. Section 4 of the Matrimonial Causes Act [Chapter 5:13]  recognises only 2 grounds for divorce and it reads, “A marriage may be dissolved by a decree of divorce by an appropriate court only on two grounds of “irretrievable break-down of the marriage” and “incurable mental illness or continuous unconsciousness” of one of the parties to the marriage. According to section 5 of the Matrimonial Causes Act [Chapter 5:13], “an appropriate court may grant a decree of divorce on the grounds of irretrievable break-down of the marriage if it is satisfied that the marriage relationship between the parties have broken down to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between them”. Where the parties are agreed that the marriage has broken down, it is not necessary for the court to enquire into the cause of the breakdown as divorce is now based on the no fault concept”. Even though the courts seem to have moved from the issue of digging into fault or guilt, such factors are now only taken as guidelines that a marriage has irretrievably broken down.

What this means put simply is that, when parties go to court over a divorce matter there is no need to tell the court what led to the divorce or whose fault it was that led to the divorce. This is so because such fault or misconduct of either spouse will not be taken into account in deciding whether or not to grant divorce and who will get what. The fact is that most marriages fail due to the fault of either party but this should not be used to penalise such party e.g. in diminishing such parties share of getting a certain share of the matrimonial property due to the fact that he or she caused the divorce or was at fault.