Tag: Civil Marriage

Unpacking Divorce Proceedings Zimbabwe

Family Law: Unpacking Divorce Proceedings

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Unpacking Divorce Proceedings

A civil marriage (registered under Marriage Act Chapter 5:11) is dissolved by the High Court through a process called a divorce. The Matrimonial Causes Act [Chapter 5:13] governs divorces. A divorce process involves a lot of stages from the initial stage of summons up to the stage of the court granting a court order for divorce. This article shall primarily focus on permissible grounds for divorce, factors considered in distribution or division of assets during a divorce and maintenance.

Grounds for divorce

Section 4 of the Matrimonial Causes Act provides for the grounds upon which a civil marriage can be dissolved. The grounds are irretrievable breakdown of the marriage and incurable mental illness or continuous unconsciousness of one parties to the marriage. On the ground of irretrievable breakdown of the marriage the court grants an order for divorce after being satisfied that the marriage relationship between the parties has broken down to such an extent that there is no prospect of restoration of a normal marriage relationship between them. The court considers the following as provided for in Section 5 of the Act

  1. The court consider that parties have not stayed together as husband and wife for a period of at least twelve (12) months before the commencement of the divorce action
  • The defendant has committed adultery which the plaintiff regards as incompatible with the continuance of a normal marriage relationship
  • Defendant has been sentenced to imprisonment for a period of at least fifteen (15) years, has been declared a habitual criminal, sentenced to extended imprisonment or has been detained in prison for a continuous or uninterrupted period which amount to five (5) years in the aggregate, within ten years before the commencement of the divorce
  • The defendant has during the subsistence of the marriage treated plaintiff with such cruelty, mental or otherwise or habitually subject himself or herself to intoxicating liquor or drugs to the extent that it is incompatible with the continuance of a normal relationship.

Factors Considered in division of assets during a divorce and maintenance orders

The factors considered by the court in distribution of property during a divorce are provided for in Section 7 of the Matrimonial Causes Act [Chapter 5:13]. By taking these factors into consideration the court endeavours as far as is reasonable and practicable to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses. This is in line with Section 25 of the Constitution which provides that in the event of dissolution of marriage whether through death or divorce provisions must be made for the necessary protection of any children and spouses.

In relation to property distribution the court can make orders in relation to the division and distribution of property including an order for an asset to be transferred from one spouse to another. The court may also order any other person holding property which forms part of the property subject to the divorce to make a payment or transfer of such property or confer on any trustees property subject to divorce. With regards to maintenance orders the court may make an order for payment of maintenance whether by way of a lump sum or by way of periodical payment to the spouse or the child.

The factors considered in distribution of property and maintenance orders are as follows

  1. The income –earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future
  2. the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
  3. the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;
  4. the age and physical and mental condition of each spouse and child;
  5. the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
  6. the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;
  7. the duration of the marriage;

Nowadays courts are reluctant in awarding orders for spousal maintenance during divorce unlike with maintenance of minor children which is a must. On the aspect of financial contribution to the acquisition of property, the court as highlighted above also considers indirect contribution made by a spouse through creating a family, taking care of the family and other domestic duties. This aspect applies to women in most cases. In the case of Mhora vs Mhora SC-89-20 the Supreme Court awarded 50% share to a 65-year-old woman who had not contributed much financially to the acquisition of a house but had devoted her life to taking care of his husband and family including children form the previous marriage of the husband. She had left her job to be a full time house wife to provide support for her husband and family. However, the percentage in such circumstances   varies and the court considers the facts of each case as presented.

It is also important to note that in terms of Section 7 (3) of the Matrimonial Causes Act there are certain properties that cannot be subject to distribution during divorce. These are properties acquired by a spouse whether before or during the marriage by way of an inheritance, properties intended to be held personally by a spouse in accordance with any custom or in any manner which have a particular sentimental value to the spouse concerned.

FAMILY LAW- Types of Marriages in Zimbabwe

Types of Marriages in Zimbabwe

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FAMILY LAW: Types of Marriages in Zimbabwe

There are three types of marriages in Zimbabwe and these are Civil Marriage (registered under Marriage Act, Customary Marriage registered under Customary Marriages Act and an Unregistered Customary Law Union (kuchaya mapoto). A marriage can only be entered into by parties of the opposite sex who are 18 years and above.

  1. Civil Marriage

This is a marriage governed and registered under the Marriage Act [Chapter 5:11) formerly known as Chapter 37. This kind of marriage is monogamous meaning it is between one husband and one wife. A wife or husband cannot contract any other marriage after having entered into this kind of marriage if they do so they would have committed an offence called bigamy and an aggrieved party can sue for adultery damages. In terms of the Married Persons Property Act 1982 all marriages in Zimbabwe from 1929 are out of community of property. This means in this type of marriage a spouse can own or dispose of property registered in his or her individual name without the consent of the other spouse. In the recent case of Chigwada vs Chigwaga SC-188-20 it was ruled that a spouse is not entitled to bequeath property registered in his or her individual name through a will to the other spouse but can do so to anyone he or she chooses. However, parties married in terms of this type marriage can own properties jointly.

A civil marriage can only be terminated or cancelled by the High Court through a process called a divorce. A divorce is governed by the Matrimonial Causes Act [Chapter 5:13]. This Act provides for the permissible grounds of divorce, distribution of property during a divorce and maintenance for minors and spouse. During a divorce the court also determines the issue to do with maintenance, custody and access of minor children.

2. Customary Marriage

This type of marriage is governed and registered under the Customary Marriages Act [Chapter 5:07]. This marriage is potentially polygamous meaning a husband is allowed to have more that one wives. This however is not the same for women. A husband is allowed to sue for adultery damages if his wife is unfaithful whilst the wife cannot do the same. The marriage is registered at the Magistrates Court after payment of lobola. The marriage is also out of community of property hence the law that applies to a civil marriage in relation to property also applies. Parties to this marriage can upgrade to a civil marriage.

A customary marriage is dissolved by the Magistrates Court as provided for in the Magistrates Court Act [Chapter 7:10]. In terms of the Customary Marriages Act the dissolution of this type of marriage is governed by the Matrimonial Causes Act. The law that applies to a civil marriage upon dissolution also applies to this type of a marriage. The Magistrate Court also deals with the issues of distribution of property, maintenance, custody and access of the minor children.

3. Unregistered Customary Law Union (UCLU)

This is a customary law union where lobola is paid but parties do not register their marriage in terms of the law hence the name unregistered customary law union. It is commonly known as kuchaya mapoto. This type of marriage is also potentially polygamous. This type of marriage is not fully recognized by the law serve for the purposes of the inheritance, maintenance and a claim for loss of life support from a third party as per Chawanda vs Zimnat Insurance Co.Ltd.1990 (2) ZLR 143 S. This marriage becomes difficult to prove on the face of it because there is no marriage certificate unlike with the other types of marriages.

This type of union is not dissolved by the court hence the dissolution or separation is done customarily. In terms of this union a woman is only entitled to what is known as ‘mawoko” property which does not amount to much but a stove, utensils and linen. This undoubtedly brings grave injustice to women due to the modern day approach of marriages where women contribute financially to the acquisition of properties. However, parties may approach the court for distribution of property with resort to principles of law such as an unjust enrichment claim or sharing of property on the basis of an existence of a tacit universal partnership. It is difficult to prove this claim hence the need to engage services of legal practitioners. This marriage is however considered a marriage for purposes of inheritance thus once it is confirmed that the named individual had lobola paid they can qualify to be a surviving spouse for the purposes of inheritance.