GUVAVA J: The plaintiff issued summons out of this
court on 13 March 2006 claiming a decree of divorce and division of the parties'
matrimonial assets. At the commencement of the proceedings the party's legal
practitioners advised that all the other issues had been resolved as between
the parties and that the only outstanding issue was that of the distribution of
their matrimonial home. However during the course of the proceedings the issue
of whether or not the marriage had irretrievably broken down arose. It seems to
me that this issue must be determined first before the court can deal with the
other ancillary issues.
The
plaintiff gave evidence and stated that he resides at number 55103 Close, Budiriro
3. He married the defendant in accordance with customary law in 1984 and registered
the marriage in 1987. They have three children two of whom are still minors. He
stated that the marriage has irretrievably broken down and there are no
prospects of a reconciliation between them. The plaintiff in his pleadings
stated that the defendant had associated with other men which association he
considers incompatible with the continuation of a normal marriage. He also
stated that defendant had failed to show proper love and affection and that
they had not had conjugal rights for a period in excess of two years.
The
defendant testified that she has been staying together with the plaintiff since
they got married. She stated that they have been sharing the same bedroom and
sharing conjugal rights until the notice of set down for this matter was served
upon her two weeks before the hearing. She stated that she continued to have sexual
relations with the plaintiff even after he issued summons against her because
she hoped that the marriage would continue. In cross examination she denied
that the marriage had broken down as they were doing everything that a married
couple does. She stated that she cooks plaintiff's food and that of the family
and does all his laundry. She stated that they had not gone for any counseling
as there was nothing amiss in the marriage relationship. She stated further
that the plaintiff had only issued summons because he wanted to sell the house
and get some money.
The
Matrimonial Causes Act [Chapter 5:13]
(the Act) provides that a court may grant a decree of divorce where it is
satisfied that the marriage has irretrievably broken down. Section 4 of the Act
provides for the grounds of divorce as follows:
"A
marriage may be dissolved by a decree of divorce by an appropriate court only
on the grounds of:
(a)
irretrievable breakdown of the marriage as contemplated
by s 5; or
(b)
..."
Section 5 of the Act provides as
follows:
“(1)
An appropriate court may grant a decree of divorce on the grounds of
irretrievable breakdown 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.
(2)
Subject to subsection (1), and without prejudice to any other facts or
circumstances which may show the irretrievable break down of a marriage, an
appropriate court may have regard to the fact that –
(a)
The parties have not lived together as husband and wife for a continuous period
of at least twelve months immediately before the date of commencement of the
divorce action; or
(b)
The defendant has committed adultery which the plaintiff regards as incompatible
with the continuation of a normal marriage relationship; or
(c)
The defendant has been sentenced by a competent court to imprisonment for a
period of at least fifteen years or has, in terms of the law relating to
criminal procedure, been declared to be a habitual criminal, or has been
sentenced to extended imprisonment and has, in accordance with such declaration
or sentence, been detained in prison for a continuous period of, or for
interrupted periods which in the aggregate amount to at least five years,
within the ten years immediately before the date of commencement of the divorce
action; or
(d)
The defendant has, during the subsistence of the marriage –
(i)
Treated the plaintiff with such cruelty, mental or otherwise; or
(ii)
Habitually subjected himself or herself, as the case may be, to the influence
of intoxicating liquour or drugs to such an extent as is incompatible with the
continuation of a normal marriage relationship;
as
proof of irretrievable breakdown of the marriage.
(3)
If it appears to an appropriate court that there is a reasonable possibility
that the parties may become reconciled through marriage counsel, treatment or
reflection, the court may postpone the proceedings to enable the parties to
attempt a reconciliation.
(4) Where proceedings have been postponed in
terms of subsection (3), they may be resumed, with leave of the court, before
any other presiding officer or judge of the court.”
It
seems to me that the parties in this matter have sought a divorce in terms of s
4 (a) of the Act. In determining whether or not a marriage has irretrievably
broken down a court is guided by s 5 of the Act. The test as set out in s 5 in
my view is whether the marriage between the parties has broken down to such an
extent that there is no reasonable prospect of reconciliation between the parties.
It is clear from a reading of that section that the grant of a divorce is
entirely at the discretion of the court. In the case of Chiviya v Chiviya 1995 (1) ZLR 210 at 213D - F, ROBINSON J stated
as follows:
"At the outset,
it is crucial to highlight that the grant of a divorce under the matrimonial
causes Act 33 of 1985 lies entirely within the discretion of the appropriate
court, as defined (hereinafter referred to as "the Court"). If one examines s 5(1)
of the Act, it will be noted that the subsection provides that the court may
(not shall) grant a decree of divorce on the grounds of irretrievable breakdown
of the marriage if it is satisfied that the marriage relationship has broken
down to such an extent that there are no reasonable prospects of a restoration
of a normal marriage relationship between them."
In
other words a decree of divorce is not obtained on demand. The court has to
satisfy itself on examination of all the evidence placed before it firstly,
that the marriage has indeed broken down and secondly that there are no
prospects of reconciliation between the parties.
In
my view the plaintiff's decision to issue summons shows that there are problems
in the marriage. However an examination of the evidence before me raises
considerable doubt as to whether the marriage has broken down irretrievably. It
was not in dispute that up until two weeks before the hearing of this matter
the plaintiff and the defendant were living under the same roof, sharing the
same bed and according to the defendant, having sexual relations. Although the
sexual relations were denied by the plaintiff the evidence weighed heavily in
favor of the defendant's version. Her undisputed evidence was that they had no
maid and she would do everything for the defendant. She would cook his food, do
his laundry and share his bed. In effect the parties, up until the hearing,
were living together as a family. The defendant's evidence in cross examination
was quite telling when she stated that she had not sought any counseling
because everything was normal.
I
believed the defendant as her evidence had a ring of truth. The plaintiff
actually looked quite sheepish when the defendant told the court that they were
still having sexual relations. I have no hesitation in accepting the
defendant's story in this regard.
It
seems to me that these fact show that although the marriage may have broken
down it is not incapable of resuscitation if the parties receive counseling or perhaps
just an opportunity to reflect on the best course of action to take. A decree of divorce brings finality to a
family union. It affects everyone from the parties themselves to their minor
children. It is not an order which the court will give lightly. The court should
not be seen to break up families where there is evidence that the marriage can
still subsist. It will only grant a decree of divorce if there is clear
evidence that there are no prospects that the parties will reconcile. I did not
find this to be the position in this case.
When
faced with such a situation, s 5 (3) of the Act gives the court the option, in
the exercise of its discretion, to either dismiss the claim before it or to
postpone the matter for a specific period to enable the parties to attempt a
reconciliation. The provision provides as follows:
"(3) If it appears
to an appropriate court that there is a reasonable possibility that the parties
may become reconciled through marriage counsel, treatment or reflection, the
court may postpone the proceedings to enable the parties to attempt
reconciliation."
It
seems to me that this provision allows the court to stop a matter at any stage
so as to allow the parties to be afforded an opportunity to reconcile. This is
clearly in accordance with the courts discretion to decline to grant a decree
of divorce where there is a reasonable possibility that the parties may
reconcile or for other reasons.
In my view postponing this matter for a
specific period would be the best course to follow in this case as it will give
the parties an opportunity to reflect on the best course of action to take. In
the event that the parties fail to reconcile they may come back to the court in
accordance with s 5 (4) of the Act and the proceedings may be resumed.
In the result, I
make the following order:
1.
This matter is postponed for a period of 12 months to
enable the parties to attempt reconciliation through marriage counsel,
treatment or reflection.
2.
There shall be no order as to costs.
O. Matizanadzo & Associates, plaintiff's legal practitioner
P. Takawadiyi &
Associates, defendant's legal practitioner