CHITAKUNYE J: The
plaintiff and defendant were married in terms of the Marriages Act
[Cap 5:11]
on 14 January 2005 at HARARE. Their marriage was blessed with one
child born on 25 November 2008.
On 28 June 2010 the plaintiff sued for a decree of divorce on the
ground that the marriage has irretrievably broken down to such an
extent that restoration to a normal marriage relationship is
impossible. He outlined the causes of the breakdown as including the
following:-
(a) That the defendant has denied
him love respect, affection and companionship ordinarily expected of
a married couple;
(b) The defendant has
demonstrated a quarrelsome and bellicose attitude towards the
plaintiff whom she has physically and verbally abused. The plaintiff
had to apply for a protection order in terms of the Domestic Violence
Act [Cap 5:16]
on 12 February 2010;
(c) Despite the protection order
the defendant has continued to harass the plaintiff making life
unbearable for him;
(d) The defendant is in the habit
of forcibly taking money from the plaintiff;
(e) The defendant harasses and
insults the plaintiff in front of school teachers and pupils at the
school where he is the Headmaster;
(f) The parties have throughout
their marriage exhibited all signs of incompatibility; and
(g) For a period of about 13
months the defendant lived in an adulteress relationship with a truck
driver in South Africa. Here in Zimbabwe the defendant has a lover
whom she has refused to cut ties with.
As a result of this the plaintiff alleged that the marriage has
irretrievably broken down. He therefore prayed for a decree of
divorce and that the defendant be awarded custody of the minor child
and all the movable property they acquired during their marriage. He
wished to retain the property he acquired before the marriage.
The defendant, in her plea, did not concede that the marriage had
irretrievably broken down. She made a bald denial of the improper
conduct alleged by the plaintiff against her. She instead contended
that it is in fact the plaintiff who committed adultery.
She revealed in her plea that the parties also acquired an immovable
property in Domboshawa which is apparently registered in the
defendant's name. She contended that that property/stand should be
awarded to their child.
The defendant made a counter claim in which she sought that the
immovable property in Domboshawa be awarded to their child.
At a pre-trial conference held on 11 February 2011 the parties
reached settlement on a number of issues. They agreed that:-
1. Custody of the minor child be
awarded to the defendant.
2. The maintenance order granted
in case number M306/2010 in the magistrates court remain in operation
until either party approaches the maintenance court for variation.
3. The minor child remains on the
plaintiff's medical aid scheme.
4. The undeveloped residential
stand in Domboshawa be registered in the name of their minor child.
The issues referred to trial include the following:-
1. Whether the marriage has
irretrievably broken down or not.
2. What constitutes movable
matrimonial property and how it is to be shared?
3. Whether the parties own a
general dealer's shop and, if so, whether it is subject to
distribution.
On 12 September 2011 when the parties appeared before me for trial
they had apparently resolved some of the issues referred to trial.
The only aspect on movable property pertained to the General Dealer's
shop. The plaintiff had resolved that the defendant should get all
the movable property of the marriage.
In this regard the plaintiff amended his prayer in paragraph (f) to
now read -
“An order that all property
acquired during the subsistence of the marriage be awarded to the
defendant.”
The aspect of the general dealer's shop was based on the
defendant's perception that the shop belonged to the plaintiff and
that it was still operating.
When the plaintiff testified that he had been leasing the shop and he
had since ceased the operations I did not hear the defendant to deny
that.
All she said was she expected to get something from the operations
without specifying what she now needed.
It is clear to me that the general dealer shop is in effect no longer
a sustainable issue.
The issue that remained to be resolved is whether the marriage had
irretrievably broken down.
The plaintiff in his testimony maintained that the marriage had
irretrievably broken down and he had no intention of restoring it to
a normal marriage relationship. He no longer had any love or
affection for the defendant. He maintained the grounds for the
breakdown as contained in his declaration.
It was his evidence that when the defendant went to South Africa he
called her to come back but the defendant refused. The defendant
remained in South Africa for 13 months serve for 2 weeks when she
came after he had told her that their child was ill after which she
went back against his wish.
When the defendant came back from South Africa they did not stay
together and are still not staying together as husband and wife.
The other ground he highlighted
was that during their stay together they became so incompatible that
quarrels were numerous and the defendant would harass him to an
extent whereby he sought and obtained a protection order against her
in terms of the Domestic Violence Act, [Cap
5:16].
Faced with the above the defendant had not much to show that the
marriage had in fact not irretrievably broken down.
Thus whilst saying the marriage had not irretrievably broken down she
did not deny that the two were no longer staying together as husband
and wife. She could not show that since the issuance of the summons
they had reconciled or even made efforts to reconcile. She instead
contended that the plaintiff is seeking a divorce order so that he
can marry another woman.
Section 5(1) of the Matrimonial
Causes Act, [Cap 5:13],
sates that:
“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.”
There are two characteristics of irretrievable breakdown of the
marriage namely:
(a) the marriage relationship is
not normal any more; and
(b) there is no reasonable
prospect of the restoration of a normal marriage relationship.
In considering the characteristics an objective test is used.
In Kumirai
v
Kumirai 2006 (1) ZLR
13 (H) MAKARAU J (as she then was) said at p136 B-D that:
“In view of the fact that the
breakdown of a marriage irretrievably, is objectively assessed by the
court, invariably, where the plaintiff insists on the day of the
trial that he or she is no longer desirous of continuing in the
relationship, the court cannot order the parties to remain married
even if the defendant still holds some affection for the plaintiff.
Evidence by the plaintiff that he or she no longer wishes to be bound
by the marriage oath, having lost all love and affection for the
defendant, has been accepted by this court as evidence of breakdown
of the relationship since the promulgation of the Matrimonial Causes
Act in 1985.”
Equally in Murada
v
Murada 2008 (2) ZLR
326 (H) at p329E-F NDOU J had this to say:
“… it is hardly possible for
a court to find that there is a reasonable prospect of reconciliation
between parties when one of them is determined to bring the marriage
to an end.”
Thus were the plaintiff insists the marriage is at an end and he or
she has no intention of reconciling, it is clear the marriage cannot
be served.
In Kumirai
v
Kumirai supra at p136
D-E MAKARAU J aptly stated that:
“To satisfy court that the
marriage still has some life in it, one has to adduce evidence to the
effect that after the filing of the summons, the parties have
reconciled and are living after the manner of husband and wife.”
In
casu neither the
plaintiff nor the defendant gave evidence to the effect that they
have reconciled or that they are now living together as husband and
wife. Evidence led showed that they are not living together and the
plaintiff has no intention of reconciling.
The plaintiff persisted with his argument that the marriage has
irretrievably broken down. He maintained the grounds for the
breakdown as in his declaration.
The defendant, apart from failing to show that the parties have
reconciled, was unable to show that the specific allegations laid
against her by the plaintiff were in fact false.
All she did was to tender a bald denial of the allegations.
That in my view was highly inadequate to show that there was
reasonable prospect of restoring the marriage to a normal marriage
relationship.
Accordingly, I find that the marriage between the plaintiff and
defendant has indeed irretrievably broken down to such an extent that
there is no reasonable prospect of a restoration to a normal marriage
relationship.
As the other aspects had virtually been either agreed upon or not
persisted with, I, accordingly, make the order that:
1. A decree of divorce be and is
hereby granted.
2. Custody of the minor child
Nyasha Ganyo, born on 25 November 2008, be and is hereby awarded to
the defendant.
3. The plaintiff is hereby
granted reasonable rights of access to the minor child upon notice to
the defendant. The defendant shall not unreasonably withhold her
consent to the plaintiff enjoying rights of access whenever such a
request is made as long as the request is made at reasonable
intervals without prejudicing the defendant's rights as the
custodian parent.
4. Issues of maintenance shall be
governed in terms of the maintenance order granted in case number
M306/2010 in the magistrate's court on 10 March 2010, subject to
any variation that may be made by the maintenance court at the
instance of the parties.
5. The plaintiff shall retain the
minor child on his medical aid scheme until the child attains the age
of 18 years or becomes self supporting which ever is earlier.
6. The plaintiff shall meet all
the minor child's educational needs and shall purchase other
clothes for the minor child twice per year.
7. The defendant is hereby
awarded all the movable property acquired during the subsistence of
the marriage.
8. The undeveloped immovable
property the parties acquired in Domboshawa is hereby awarded to the
parties' minor child.
9. As the property is registered
in the defendant's name the defendant shall within 90 days of the
date of this order sign all necessary documents and take all steps
required to have the property registered in the minor child's name.
The plaintiff shall pay the costs involved in the registration of the
property into the minor child's name.
10. Each party shall bear their
own costs of suit.
Chingore & Associates, plaintiff's legal practitioners
