In a divorce matter, the jurisdiction of the court to hear the matter is based on the domicile of the husband at the time the divorce action is instituted. Domicile is the country one treats as his permanent home or lives in and has substantial connection with.
If you are a Zimbabwean citizen and you are granted a divorce order by a court in a country in which the husband was not domiciled, the divorce order will not have any force of law in Zimbabwe until it has been registered in accordance with the law.
Recognition refers to the process of considering the foreign decree of divorce as binding. In order for a foreign decree of divorce to be recognised in Zimbabwe as binding between the parties, an application for its recognition should be made to an appropriate court. If the foreign decree of divorce relates to a marriage contracted in terms of the Customary Marriages Act (Chapter 5:07) the application should be made to the Magistrates’ court. If the foreign decree of divorce relates to a marriage contracted in terms of the Marriage Act (Chapter 5:11) the application should be made to the High Court.
Requirements to be met for a divorce order to be registered
In order for the court to recognize the foreign decree of divorce as binding, the following requirements must be met:
- The husband was not domiciled in the country which granted the decree of divorce ( he did not treat that country as his permanent home)
- The law of the country in which the foreign decree of divorce was granted contains provisions which correspond substantially to the relevant provisions of section 3 of the Matrimonial Causes Act.
The aforementioned said Section 3 provides the following;
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 –
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
- 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
- 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.
The appropriate court must also be satisfied that the foreign divorce order is genuine and that it was granted by a competent court in the relevant country. The court recognizes the foreign decree of divorce by registering it as an order of that court. The court order is then submitted to the Registrar of Marriages.
The rationale behind the registration of the foreign divorce decree is that there is need to update the status of the parties to the divorce in the country which solemnized their marriage. The parties will be considered a married couple as long as they have not registered with an appropriate court. The divorce decree handed down by a foreign court and submitted same to the Registrar of Marriages.
Re-marriage after divorce
After having successfully registered a foreign divorce decree in the appropriate court, either of the divorcees may want to marry a foreigner in the country in which they are resident. The party intending to re-marry must obtain a certificate of non-marriage from the Registrar of Marriages.
[1] Section 12(1) of the Matrimonial Causes Act
