How to properly divorce and the potential consequences

First Published: May 13, 2019

How to properly divorce and the potential consequences

A Chapter 5:11 marriage (herein referred to as “marriage” is a monogamous type of marriage. Any “marriage” which either party to the marriage may enter into while the Chapter 5:11 marriage remains in existence is invalid at law. More often than not such marriages lead to very complicated situations. The dissolution of any marriage should be formalised.

It is important to realise that merely living apart for a number of years does not in itself dissolve a marriage. One should obtain a decree of divorce in order to protect oneself from emotionally and psychologically devastating consequences.

A lot can be learnt from the case of Ella Munjeri v Oliver Nakoma NO and 4 ORS HH847/15 which was decided by the honourable Justice Mwayera

The background of the case is: Oliver married Ella customarily and solemnised the marriage before a marriage officer. Years down the line, they parted ways. Oliver gave Ella the token 5 cent coin as “gupuro” in ithe presence of her relatives thereby meeting the customary requirements for a “divorce”. Years later, both Oliver and Ella found more compatible partners and entered into customary marriages without having their marriage formally dissolved by a court of law..

One of the challenges that arises from such a scenario is that legally, neither Oliver nor Ella could validly enter into another Chapter 5:11 marriage while the initial Chapter 5:11 marriage they entered into remained valid. Any lawfully married person entering into a subsequent marriage knowingly without first terminating the first marriage is guilty of the crime of bigamy.

In the aforesaid case it was held that:

i. A registered customary law marriage contracted during the subsistence of a Chapter 5:11 (or Chapter 37 marriage) is a nullity.

ii. The duration of the parties’ separation is irrelevant as in the absence of a decree of divorce, they remain married at law.

iii. The dissolution of a marriage is a matter left to be done by a competent court and where such a decree of divorce is not issued then the marriage remainss intact.

iv. The customary “marriage” by Oliver during the subsistence of the Chapter 5:11 marriage to Ella remains a nullity from its inception and therefore cannot be resuscitated.

v. For one to qualify as a surviving spouse, they have to qualify as a wife during the deceased’s lifetime. The subsequent “marriages” that Oliver entered into were a nullity therefore the women he lived with as his customary law “wives” were not his wives in terms of the law. Only Ella was regarded as his wife.

vi. Even when parties had lived apart for over 20 years and purported to have entered into customary unions with other people, should one of the parties to the original marriage pass away, the spouse to that marriage can return and claim the title of surviving spouse and inherit.

vii. The association with a party to a monogamous marriage can only be described as an adulterous relationship and does not give qualities of a surviving spouse despite the length of the union or the circumstances surrounding it.

viii. An association deemed adulterous at law does not amount to the dissolution of a marriage. Merely because Oliver entered into subsequent “marriages” does not affect the status of his marriage to Ella.

ix. Even where a surviving spouse chooses not to pursue an estate, this does not clothe any other person with their status as surviving spouse. Oliver’s customary union partners cannot claim to be his spouse in the event that Ella chooses not to pursue the estate. Legally, Ella remains his wife.

x. A legal marriage can only be severed legally and not by inference. In the same manner that a marriage regime is ushered into life by law so must it be exited by legal channels.

xi. Even where a spouse dies while in the middle of divorce proceedings, the other spouse is deemed a surviving spouse as there would be no decree of divorce.

In some instances, a husband may simply decide to move out of the matrimonial home and cohabitate with another woman. The wife may remain in the house even though it is in the husband’s name. Parties tend to get comfortable with this situation and neglect to formalise the dissolution of the marriage. Should the husband decide to sell the house, he would not require his wife’s permission or to notify the wife before doing so. This would leave the wife vulnerable and with no recourse. Formalisation of the dissolution may have resulted in a matrimonial sharing regime which would establish the wife’s interest or rights to the house.


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