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Adultery and Divorce

Marriage establishes a community of life, or consortium omnis vitae, which obliges the spouses to live together, afford each other reasonable marital privileges, and be faithful to each other. These duties cannot be directly enforced.An aggrieved party cannot compel his spouse by judicial decree or brute force to honour his or her conjugal obligations. Being of the essence of the marriage relationship, these duties cannot be excluded by agreement between the parties.

You shall not commit adultery.God forbids the commission of adultery. He wants marriage to be held in honour, because marital unfaithfulness is such a horrible thing. You cannot be unfaithful and expect your marriage to work.Adultery is a ground for divorce.

Grounds for Divorce

In Zimbabwe, a marriage may be dissolved by a decree of divorce by an appropriate court only on the grounds of:

• irretrievable break-down of the marriage as contemplated by section five; or

• incurable mental illness or continuous unconsciousness of one of the parties to the marriage as contemplated by section six.

Irretrievable break-down

In terms of section 5 of the Matrimonial Causes Act [Chapter 5:13]:

• 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.

• 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 -

• 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

• the defendant has committed adultery which the plaintiff regards as incompatible with the continuation of a normal marriage relationship; or

• 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

• the defendant has, during the subsistence of the marriage.

In terms of section 5(2)(b) of the Matrimonial Causes Act [Chapter 5:13] where one is relying on adultery as a ground for divorce, they must aver that they regard their spouse’s adultery as incompatible with the continuation of a normal marriage relationship. This means that adultery does not automatically lead to divorce.

A marriage can survive adultery. Just as your relationship will have to change in order for it to survive, so too must you and your partner. It is possible for couples who have marital unfaithfulness as part of their marital history to recover and go on to have happy, healthy relationships again.That however does not happen on its own. It is not something the parties can do on their own. Professional help is needed.

The Marriage Centre Harare Zimbabwe provides affair recovery counselling. They offer physical and virtual counselling sessions. Counsellors at The Marriage Centre Zimbabwe have the training, skills and experience needed to repair marriages wounded by marital affairs and help couples in such marriages build better, stronger and healthier marriages.

Lawyers with clients in need of affair recovery counselling can refer their clients for professional help to The Marriage Centre Harare Zimbabwe who are contactable on www.themarriagecentre.net and WhatsApp No. +263781998987.