FREQUENTLY ASKED QUESTIONS ON DIVORCE
By Roselyn Mhlanga
I am based in Zimbabwe and my spouse is based in Australia. We have not been living together for the last 7years. We both agree that we do not love each other anymore and no longer want to remain married. We do not have any children from the marriage or have any property to share. How can we proceed to get a divorce?
Where both parties acknowledge that the marriage has irretrievably broken down and there are no ancillary issues (i.e. custody and maintenance of minor child, spousal maintenance or distribution of property) that are in dispute then the matter will be dealt with on an uncontested basis. This means that the parties will sign the necessary papers prepared for them by their lawyers and have the divorce granted without them having to attend court.
It would be cheaper and quicker for the spouse in Australia to institute the divorce proceedings and have the Divorce Summons served on the spouse in Zimbabwe. This way you avoid the need for an application for substituted service.
My wife and I are currently having problems and I am considering divorce. We have 3 children aged 12, 15 and 19. We own three houses and two cars. How do I go about getting a divorce?
You can institute the divorce proceedings stating your grounds for divorce, how you want the issue of the custody and maintenance of the two children aged 12 and 15 to be handled, how the non – custodian parent will exercise access to the children and how the property is to be shared.
Should your wife oppose the divorce and or any of the ancillary issues then you will be required to attend court to give evidence after which the court will make a determination on the matter.
Should you and your wife be agreed on all the issues then your matter will proceed on an uncontested basis. This will be quicker, cheaper and convenient to both of you as you will not have to attend court to give evidence.
What is substituted service?
This is done when delivery of legal documents or process legally cannot be served personally on the Defendant especially in divorce proceedings where the Defendant cannot be found or they live in another country. With the leave of the court, service of process upon the Defendant is then by publication, by mailing a copy to his or her last known address, or by personal service in another country or by a court-approved process server. This process increases the fees payable as you will have to pay for the application and the cost of having the court documents served. It also slows down the matter as you cannot progress without the application for substituted service being granted first.
How long does it take to get an uncontested divorce?
The time taken to finalize an uncontested divorce depends on how much time is taken for the papers to be prepared, sent to the parties, signed and sent back for filing as well as the Defendant’s whereabouts. If the Defendant is out of Zimbabwe it will take longer as there will be need to apply for substituted service and have the Defendant’s Affidavit of Waiver signed before a Notary Public. If both parties are in Zimbabwe and they quickly sign the relevant documents, the divorce can be granted within two weeks.
Will I be penalized because I decided to institute divorce proceedings?
Either party can institute the divorce proceedings. You will not be penalized for instituting the proceedings.
My husband of 16years has filed for divorce. I am a house wife and have not worked in 10 years. Can I claim spousal maintenance from him?
The Matrimonial Causes Act under section 7 as read with section 8 deals with maintenance. The claimant whether male or female has to outline his/her monthly expenditure. The claim must be based on the standard of living that the parties used to enjoy as a couple. The claimant has to show that such quantum of money is a necessity and that he or she should not be deprived of that standard of life. It is prudent to note that the claimant has to show that the other party can still afford to pay for that standard of living for them. The court requires for you to state the duration for such maintenance as spousal maintenance is no longer a right upon divorce. If the woman or man is young, used to work before or during the marriage and can be expected to work after the divorce, maintenance may be granted for a short period. Permanent spousal maintenance is reserved for elderly spouses.
What factors does the court consider in distributing matrimonial property upon divorce?
The court is in this regard guided by the provisions of section 7 of the Matrimonial Causes Act. It looks at such factors as:
- The duration of the marriage
- In whose name the assets are registered
- The direct or indirect contribution made by each spouse to the family
- The standard of living of the family
- The age and physical and mental condition of each spouse and child
- 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.
How much does an uncontested divorce cost?
Depending on whether or not an application for substituted service will be necessary as well as the nature and extent of the negotiations that will be involved, the cost will be plus or minus US$ 1400.00 for the Plaintiff and plus or minus US$ 800.00 for the defendant. These charges are exclusive of VAT and consultation fees.
How much does a contested divorce cost?
The cost will depend on such factors as the complexity of the case, the importance of the case to the client, the amount of time taken to bring the matter to finality, the amount of work done etc. The fees can either be by agreement or in terms of the Law Society Tariff.
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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