DIVORCE PROCEDURE IN ZIMBABWE [PART TWO]
Prepared by Rose Mhlanga
Distribution of matrimonial property
In making an award of matrimonial property the court is applies the principles set out in s 7 of the Matrimonial Causes Act [Chapter 5:13.]. The rights claimed by the spouses under s 7(1) of the Act are dependent upon the exercise by the court of its broad discretion. Section 7(1) of the Act provides that the court may make an Order with regard to the division, apportionment or distribution of “the assets of the spouses including an Order that any asset be transferred from one spouse to the other”. It is important to note that the terms used are the “assets of the spouses” and not “matrimonial property”. The latter term is used because the use of the term “matrimonial property” often leads to the misconception that assets acquired by one spouse before marriage or when the parties are on separation should be excluded from the division, apportionment or distribution exercise. The term “the assets of the spouses” is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.
These are some of the factors the court considers when making an order for division of property/assets:-
- the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
- 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;
- the age and physical and mental condition of each spouse and child;
- 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;
- 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;
- the duration of the marriage;
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.
Where the parties are agreed on the divorce and all the ancilliary issues e.g. custody of the children, access , maintenance and property sharing, the matter can proceed on an uncontested basis in which case the parties sign relevant documents for filing with the Court. Where the Plaintiff is legally represented the parties will not have to appear in Court. Only the Plaintiff’s lawyer appears in court to apply for the divorce decree. This is cost effective, quicker and convenient.
The contested divorce process consists of various stages:
- Discovery of documents
- Pre-Trial Conference
The formal documents in a matter divorce are referred to as pleadings. Typically, the pleadings in a divorce will consist of the following documents:
- Summons, particulars of claim (Plaintiff’s Declaration)
- Appearance to Defend
- Plea & Counter-claim (if any)
- Plea to counterclaim (if any)
Only those facts that are necessary to support a cause of action or to disclose a proper defence should be pleaded in the pleadings. One often finds unnecessary detail and/or facts in the pleadings. The pleadings narrow the disputes and provide guidance to the court on the evidence that is to be led.
Discovery of documents
In the period between close of pleadings and waiting for a trial date, there is a process called discovery, during which each party asks to see the documentation and other material like tape recordings the other party intends to use at trial. Each and every document that a party will use at the trial must be ‘discovered’, i.e. the other party must be given an opportunity to read the document before the trial commences. The documentation may include bank statements, shareholdings in companies, credit card statements, bond accounts and tax returns. It is usually during the discovery process that most of the hidden documents are found, as there are processes that can require specific documents to be brought forward.
The court may at any stage after close of pleadings, or at the request in writing of either party, direct that an informal conference be conducted in the presence of a judge in chambers, in order to consider a settlement or narrowing of disputes.
Trial proceedings commence with both parties legal representatives being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties. If, on the pleadings, the burden of proof is on the plaintiff, he/she must give evidence first. Where the burden of proof is on the defendant, the defendant will be first. After both parties have given evidence, whoever went first may again address the court. The other party then has a chance to respond and the party who went first may reply.
A divorce trial must culminate in the granting of judgment. The court may grant any of the following orders:
- judgment in favour of the Plaintiff in respect of his/her claim in so far as he/she has proved the same;
- judgment in favour of the Defendant in respect of his/her defence in so far as he/she has proved the same; or
- Absolution from the instance if it appears to the court that the evidence does not justify giving judgment for either party.
In giving judgment or in making any order including adjournment or amendment, the court may award such costs as may be just. These costs may also be subject to taxation. While costs are generally awarded to the successful party, this is not a fixed rule. The court may decide not to award costs at all, or may apportion the costs of the proceedings between the parties.
DIVORCE IN A REGISTERED CUSTOMARY LAW UNION
Dissolution of this union is by order of a Magistrates Court. The same grounds outlined above for divorce in a civil marriage apply. It is advised that each party be represented by a legal practitioner though this is not mandatory.
Division of property may be done at the Magistrates court as provided in Section 11(b) (iv) of the Magistrates Court Act [Chapter 7:10]. The Act states that every magistrates court shall have in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, jurisdiction— “in actions in which is claimed a decree of divorce, judicial separation or nullity of a marriage solemnized in terms of the Customary Marriages Act [Chapter 5:07], including actions relating to the division, apportionment or distribution of the assets, whether movable or immovable, of spouses or former spouses of such marriages and the payment of maintenance in terms of the Matrimonial Causes Act [Chapter 5:13];
Divorce in an Unregistered Customary Law Union
An unregistered customary law union is not given full recognition under the law as a marriage; therefore, there is no “divorce” through the courts as in the other types of marriage. “Divorce” in the sense of the word is achieved by following customary traditions. A rejection token is given to the spouse as a sign that the other wants to dissolve the marriage. The token has to be in the form of money. It does not matter whether it is a coin or note.
As unregistered customary law unions are still not recognized as marriages except for certain limited purposes, the provisions of section 7 of the Matrimonial Causes Act, [Chapter 5:13] regarding distribution of property do not apply to them. Section 11(b) (iv) of the Magistrates Court Act [Chapter 7:10] which accords jurisdiction to the Magistrates’ Court to adjudicate over divorce cases of persons married in terms of the Customary Marriages Act, [Chapter 5:07] equally has no application to unregistered customary unions.
As the marriage is not dissolved through the courts, in the absence of an agreement between the parties, the distribution of property may be done unfairly. One party (usually the husband) takes most of the property while the other party is left with very little or with nothing. One may seek for assistance from the court in cases where the union fits the requirements under common law of a tacit universal partnership. However, there is a bigger burden of proof than in the other types of marriage to prove that you are entitled to the property.
Tacit Universal Partnership
There is no formal divorce in a universal partnership. Under common law once two cohabiting partners decide to go their separate ways, that will be the end of the partnership or relationship. The universal partnership is a useful mechanism created by the courts to allow a cohabitee to share in assets at dissolution of the relationship. This is a useful remedy for distribution of property for spouses in an unregistered customary law union.
For example, in a situation where you own a house and have a boyfriend or girlfriend living in the house, at dissolution that person will have no claim to the equity in the house, unless a universal partnership can be proven. That person may however be able to enforce his or her rights as a tenant. In a situation where both partners assisted in the acquisition of the property that they shared during their term of living together, the court looks at a number of factors before sharing the property.
A universal partnership will exist if the following are present:
(a) Each of the partners brings something into the partnership;
(b) The business or acquisition of property is carried on for the joint benefit of the parties;
(c) The object of the partnership should be to make a profit;
(d) The contract should be a legitimate one. (In a universal partnership the acquisition of property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is by an agreement derived from the conduct of the parties)
Custody upon Divorce
The issue of custody is handled in the same way regardless of the type of marriage or union being dissolved. In making an award for custody upon divorce the court is guided by the principle of what is “in the best interests of the minor children”. This power is granted to the court in terms of s 10 (1) of the Matrimonial Causes Act [Chapter 5:13]. The provision mandates the court to conduct an inquiry and commit children of the marriage into the custody of the parent best suited to have such custody.
The Supreme Court in the case of Hackim vs. Hackim 1988 (2) ZLR 61 defined what is meant by the term ‘best interest of the child’. In determining what is the best interest of a minor the court considers all the circumstances and every aspect of the child’s upbringing that is age, sex, health, education, religious needs, social and financial position of each parent and his and her character, temperament and behavior towards the minor child.
Usually the court will grant custody of the minor child to the mother but that is not always the case. A father can only get custody of children if he can show that it would be in the best interest of the children that he should have custody instead of the mother. Usually he has to prove that the mother is unfit to take care of the child, whether it is because of her temperament and behaviour toward the child or her social position.
The law of Zimbabwe stipulates that the non-custodian parent should have reasonable access to the children. The nature and extent of such access is a matter of the court’s discretion.. The court is inclined to ensure that the bond between the children and the non-custodian parent remains strong.
Under common law spouses are under a reciprocal duty to support each other. This duty arises where a spouse shows that they are not in a position to maintain themselves and therefore need assistance from their former spouse. The spouse claiming maintenance must satisfy the court that they are unable to look after themselves and require assistance from their former spouse. In the case of Chamba vs. Chamba 1992 (2) ZLR 197 the court stated that “marriage can no longer be seen as providing women a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved”. In a case where a spouse has been looking after themselves since separation and he or she is still young and is not disabled in any way, and earns a reasonable income then maintenance will not be granted.
The law of maintenance is entrenched in the Maintenance Act [Chapter 5:09]. The obligation to maintain a child does not rest solely on the father. The responsibility rests on both parents, according to their respective means. The fact that the father can adequately support the child on his own does not mean that the mother can avoid contributing towards the child’s upkeep. The amount of maintenance granted depends on the life style the child is accustomed to and the means of the parents. The fact that a child is visiting a parent temporarily does not entitle that parent to suspend or reduce his/her maintenance during that period, unless a court order contains a specific provision to the effect that this may happen. A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a step-parent is also under no obligation to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage when it comes to maintenance obligations.
The refusal by the custodian parent to allow the non-custodial parent access does not entitle that parent to stop paying maintenance. In order to fulfil their obligations to support their child, parents must use both of their incomes and, if necessary, their capital. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student. A child who is above is above 18years of age will have to prove that they are still dependent on their parents and has no other source of income. Usually in this case, a major child in college or university will be granted maintenance.
Any of the parents or the major child may apply for maintenance at the maintenance court. The Maintenance Act under Section 3 states that “Every Magistrates Court shall, within its area of jurisdiction, be a maintenance court for the purposes of this Act”. One may also seek maintenance from the High Court during divorce proceedings. When maintenance court makes an order regarding maintenance, such an order is not fixed forever. If circumstances change, an application for variation upward or reduction in maintenance can be made. When a child reaches the age of 18, a parent cannot claim maintenance on their behalf. The child must institute action in his/her personal capacity. The rules relating to parents’ duty to maintain a child also apply in respect of children born out of wedlock.
The court holds the marriage institution as sacred and therefore will not easily dissolve it unless it is satisfied that all other options of saving it have failed.
The contents of this publication are for general information purposes only. They do not constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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