MAKARAU JP: The plaintiff
and the defendant were married at Harare on 5 September 1998. Two
daughters were born of the marriage. These were born in 2001 and 2004
respectively.
On 31 January 2007, the plaintiff issued summons praying for a decree
of divorce to issue on the grounds that his relationship with the
defendant had broken down to such an extent that there is no
possibility of reconciliation. In the main, the plaintiff lamented
the fact that he had been denied conjugal rights by the defendant for
a period in excess of three years.
The action was defended and after the pleadings in the matter had
closed, the parties appeared before a judge in chambers for a
pre-trial conference on more than one occasion.
During the discussions under the guidance of the judge at the
pre-trial conference, the parties managed to agree that it was in the
best interests of the minor children that their custody be awarded to
the mother upon divorce with the plaintiff enjoying reasonable rights
of access to the children.
The parties also agreed in the main as to how to apportion the
movable assets they jointly acquired during the subsistence of the
marriage.
They also agreed that the immovable property in Ruwa, being a vacant
stand, be registered in the names of the minor children.
The defendant however did not agree that her marriage to the
plaintiff had broken down to such an extent that reconciliation is
impossible. She averred that with proper counseling, the parties
could resume a normal married life.
It was this sole issue that the judge presiding over the pre-trial
conference referred to trial.
At the trial of the matter, the plaintiff testified as to the
frustrations he has endured during the subsistence of the marriage in
exercising conjugal rights with the defendant. The record is replete
with the minute details of how each attempt at intercourse was not
satisfactory for him and left him frustrated. He further testified as
to how in an effort to enhance their intimacy, he procured an adult
DVD on one occasion and on another, he purchased for the defendant a
lubricant to ease things for her.
All this came to naught.
Realizing that they had a real problem in their marriage, the parties
were counseled by a married couple who arranged counseling sessions
for them. This appears to have been professional counseling.
The problem persisted.
Relatives tried to talk to them and still the plaintiff felt
frustrated by what he perceived as the defendant's failure to
perform her side of the bargain in the marriage.
He then resolved to terminate the marriage and caused summons to be
issued in the matter.
Under cross examination, the plaintiff explained how the two
daughters they have were born in the marriage which he had described
as unfulfilling. The record again carries the minute details of how,
according to the plaintiff, the second daughter was conceived. It is
not necessary for the purpose of this judgment that I repeat the
graphic evidence that was led in this regard.
In my view, the plaintiff gave his evidence well. His frustrations
were almost palpable as he testified. He is an articulate young man
who impressed me as being honest and fair.
The defendant is equally articulate and very earnest.
She testified in defence of her marriage to the plaintiff. It is
clear that she values her marriage and is still affectionate towards
the plaintiff. She is a devout Christian who believes in the sanctity
of marriages.
Her evidence was to the effect that the marriage has not broken down
irretrievably as she still loves the plaintiff. She denied the
allegation that she had denied the plaintiff conjugal rights and was
of the view that the problems they are facing are capable of
solution. She further testified as to how the plaintiff walked out of
some of the counseling sessions they were undergoing and failed to
turn up for others.
In my view, the facts of this matter are largely common cause.
The parties have had some
problems in their marriage. The problems are not freshly occurring or
transient. The parties have debated the issue before between
themselves and in the company of others. Some of the questions that
the defendant put to the plaintiff in cross-examination were put to
him prior and in other fora.
They have sought counseling on the issue and this has not yielded the
desired result. She at one time sought medical treatment and again it
did not assist the parties in enhancing their intimacy. It may be
well true as she says that the problem on her part is psychological
and will require psychological intervention.
The issue that falls for my determination is whether in light of the
evidence before me I am satisfied that the marriage between the
parties has broken down irretrievably and that a decree of divorce
should issue.
In determining this matter, I have sought guidance from the
provisions of section 5 of the Matrimonial Causes Act [Chapter 5.13]
which provides that:
“(1)
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 has broken down to such an
extent that there is no reasonable prospect of the restoration of a
normal marriage relationship between them.”
It is the settled position at law
as recognized by this court that this section vests wide discretion
in the appropriate court seized with a divorce matter to either grant
the divorce or postpone the hearing of the matter to give the
marriage another chance where the court is of the view that this is
the appropriate approach to take. (See Chiviya
v Chiviya 1995 (1) ZLR
210 (H): Kangai v
Kangai HH52/07: and
Mashonganyika v
Mashonganyika
HH10/08).
The introduction of the concept of irretrievable breakdown of
marriage in 1985 was to move away from the fault or matrimonial
offence principle to an objective assessment of the state of the
marriage by the appropriate court.
It is my considered view that once one party to the marriage has
expressed an intention to end the marriage and remains of that view
at the time of the hearing of the matter, in the absence of any
evidence to show that he or she may have changed their mind between
the issuance of summons and the hearing of the matter, the court will
be hard pressed to order the parties to reconsider their positions.
It takes two to tango.
In casu,
as stated elsewhere above, the parties have genuine problems that
have persisted for at least 3 years. Counseling to date has not
assisted in resolving their problems. It is therefore idle in my view
on the part of the court to postpone the matter to enable the parties
to seek further counseling in the matter.
The parties separated in July 2007. He has not been back. Since he
departed from the matrimonial home, there is no evidence that the
parties attempted to resolve their problem or that they took any
active steps in coming together again as husband and wife.
It is in my view again idle for the court to believe that what the
parties in this matter require is more time to reconsider their
respective positions.
The facts of this matter are in
my view to be contrasted with the facts in Mashonganyika
v Mashonganyika
(supra) where the parties were sharing board and bed, including
affording each other conjugal rights well up to a fortnight before
the date of the hearing. Rather than showing incompatibility, the
parties in that case showed that they could continue as husband and
wife were for some time and the plaintiff only changed their daily
routines because the matter had been set down for hearing. If the
matter had taken long before being set down, it is easy to imagine
that normal marriage relations would have continued between the
parties. It is not cynical in the least to suggest that normal
marriage relations between the two were interrupted by the set down
of the matter.
Courts will not grant divorces lightly.
Divorces change one's status at law and socially. Where the parties
have children, a divorce has the effect of separating the children
from one of their parents save for regulated periods of access by the
non-custodian parent. Generally, a divorce has the effect of
impoverishing the divorcing couple as it parcels out jointly held
assets into two separate estates, each estate obviously becoming less
in worth than the jointly held estate. Thus, where there is evidence
that a marriage can be salvaged, or where the justice of the case
demands, the court will exercise its discretion against granting a
decree of divorce.
Neither of these two aspects appears to me to characterize the matter
before me.
Equally important in my view is to note that while courts will not
lightly grant a decree of divorce, defendants who argue that their
marriages to plaintiffs have not broken down irretrievably have the
duty to place before the court evidence tending to show that there
are prospects of reconciliation and that the plaintiff has been
responding well to overtures of reconciliation.
The court cannot act on the mere belief of one of the parties that
the marriage will someday blossom into its former vibrancy and
passion.
The parties agreed on how to share their assets in the event of a
divorce. I shall give effect to this agreement in the divorce order
that I issue.
Regarding the immovable property, the parties agreed that it be
registered in the joint names of the parties two children as their
property but that in the interim and for the purposes of securing
funds to develop the vacant stand, that it be registered in the name
of the defendant.
The defendant prayed for maintenance for herself and the minor
children.
She is a Bachelor of Science
graduate who is gainfully employed. In praying for maintenance for
herself, the defendant argued that since the plaintiff is the one who
has decided to terminate the relationship, he should be compelled by
law to maintain her and the minor children at a standard of living
higher than they were used to during the subsistence of the marriage.
“A
woman who has been divorced is no longer entitled as of right to be
maintained by her former husband until her remarriage or death. Where
the woman is young and had worked before the marriage, and is thus in
a position to support herself, where there are no minor children, she
will not be awarded maintenance. If she had given up her job to look
after the family she will be awarded maintenance for a short time to
allow her time to get back on her feet. Where the divorced woman is
middle aged she will be given maintenance for a period long enough to
allow her to be trained or retrained. On the other hand elderly women
who cannot be trained or remarried are entitled to permanent
maintenance. See Chiomba
v Chiomba.
1992 (2) ZLR 197.”
The above are the remarks of
GOWORA J in Kangai v
Kangai (supra).
I associate myself with the remarks as representing the approach of
this court to the issue of maintenance for the divorced wife.
On the basis of the above, the defendant, being gainfully employed,
is not entitled to maintenance from the plaintiff.
Regarding the maintenance of the minor children, the parties have
agreed as between them that the contribution of the plaintiff be in
kind and that he provides at least 60% of the monthly needs of the
children. I will not make an order to this effect as such an order
will not be difficult in policing but in enforcing as well. I will
leave it open to the defendant to approach an appropriate maintenance
court should she find the arrangement unworkable in future.
In the result, I make the following order:
1. A decree of divorce is hereby
issued.
2. Custody of the two minor
children is hereby awarded to the defendant with the plaintiff
enjoying reasonable rights of access.
3. The plaintiff shall be awarded
as his sole and absolute property the following:
3.1 1 x refrigerator.
3.2 1 x DVD player.
3.3 1 x satellite dish and
decorder.
3.4 1 x two plate stove.
3.5 1 x bed and mattress.
3.6 1 x 21 inch LG color
television set.
4. The defendant is hereby
awarded as her sole and absolute property the following:
4.1 1 x 4 plate cooker.
4.2 1 x deep freezer.
4.3 1 x lounge suite.
4.4 1 x 21 inch Phillips
television set.
4.5 1 x radio cassette player.
4.6 1 x carpet.
5. The immovable property known
as Stand 27 Ruwa, is hereby awarded in equal and undivided shares to
Vongai (born 21 March 2001) and Vimbai (born 22 July 2004).
6. Until the younger child
attains majority, the immovable property shall be registered in the
name of the defendant who shall hold the property in trust and to the
extent that she is capable, shall develop the property for the
benefit of the minor children.
7. Each party shall bear its own
costs.
Madzivanzira, Gama and Associates, plaintiff's legal practitioners
