Uncontested /unopposed divorce in Zimbabwe-By Tivakudzeshe Madzonga

Divorce is a legal process for dissolution of marriage. In today’s world ,divorce has become quite common . According to The Chronicle newspaper ,in an article on the 25 th of February 2023 titled ‘ Out with marriage, in with divorce 100% rise in divorce cases in the High court ’ ,20% of marriages in Zimbabwe are most likely to end in divorce 1 .The origins of divorce can be traced back to the institution of repudium under Roman law. 2 Repudium was the termination of a marriage by the husband on the grounds of a wife’s misconduct for example adultery. This option later became available to women, in the 3 rd Century. The notion of divortium developed from this institution of repudium. Divortium was the alienation of a marriage through mutual consent of the spouses. This is what is considered now as an uncontested/unopposed divorce. An uncontested divorce is one whereby the parties to the divorce are in agreement that the marriage has irretrievably broken down and have resolved among themselves issues of access to and custody of minor children,the children’s maintenance and sharing of property. This article seeks to discuss the requirements for an uncontested/unopposed divorce under Zimbabwean laws, the process leading to the granting of a decree of divorce on an uncontested/unopposed basis in Zimbabwe, as well as the advantages and disadvantages of instituting uncontested/unopposed divorce proceedings.

In Zimbabwe,the acceptable ground for divorce is irretrievable break-down of the marriage  3 .Irretrievable breakdown means 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. The courts consider several factors in determining whether a marriage has irretrievably broken down. These are:

• i. '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.
• ii. the defendant has committed adultery which the plaintiff regards as incompatible with the continuation of a normal marriage  relationship
• iii. 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 :
• iv. the defendant has, during the subsistence of the marriage—
• a. treated the plaintiff with such cruelty, mental or otherwise;
• b. habitually subjected himself or herself, as the case may be, to the influence of intoxicating liquor or drugs to such an extent; as is  incompatible with the continuation of a normal marriage relationship.

Section 3 of the Matrimonial Causes Act states that the High Court of Zimbabwe has the jurisdiction to deal with divorce proceedings 5 . Both contested and uncontested divorce proceedings in Zimbabwe are instituted through summons. 6 In an uncontested divorce one spouse initiates the divorce through summons to which is attached the plaintiff’s declaration . These documents must then be served on the defendant personally by the Sheriff or his lawful deputy because divorce is a process that leads to a change of one’s status. In the event that the defendant is not resident in Zimbabwe, an application for edictal citation must be made 7 .Where the defendant is believed to be in Zimbabwe but their precise location is unknown to the plaintiff, an application for substituted service must be made to the court for leave to serve the summons through other means for example through publication in a local newspaper or service through mail. There are two circumstances where a divorce may be regarded an uncontested .The first one is where by a defendant after being served with divorce summons does not enter an appearance to defend since the parties will be in agreement .The defendant must in that event sign a consent paper , which outlines the agreed terms of the divorce by the partiesas well as an affidavit of Waiver. The second circumstance is where by the defendant initially defends the action and then at any point before the trial enters into a consent paper with the plaintiff. This consent paper regulates such issues as the division of assets, access to and custody of minor children as well as their maintenance. The consent paper must be carefully worded and read. The caveat subscriptor rule which means that “signer must beware” applies to consent papers. R.H .Christie’s Business Law in Zimbabwe explains that , ‘a party to a contract is bound by his signature, whether or not he has read and understood the contract….and this will be so even if he has signed in blank…or it is obvious to the other party that he did not read the document.

There are two circumstances where a divorce may be regarded an uncontested .The first one is where by a defendant after being served with divorce summons does not enter an appearance to defend since the parties will be in agreement .The defendant must in that event sign a consent paper , which outlines the agreed terms of the divorce by the partiesas well as an affidavit of Waiver. The second circumstance is where by the defendant initially defends the action and then at any point before the trial enters into a consent paper with the plaintiff. This consent paper regulates such issues as the division of assets, access to and custody of minor children as well as their maintenance. The consent paper must be carefully worded and read. The caveat subscriptor rule which means that “signer must beware” applies to consent papers. R.H .Christie’s Business Law in Zimbabwe explains that , ‘a party to a contract is bound by his signature, whether or not he has read and understood the contract….and this will be so even if he has signed in blank…or it is obvious to the other party that he did not read the document. The above point was emphasized by the Supreme court in the case of Mhlongwa vs Mhlongwa SC 98-05 where the court held that the signing of the consent paper by the appellant, created a presumption that he is acquainted with its contents’. In terms of the caveat subscriptor rule a party who signs a consent paper is taken to be bound by the ordinary meaning and effect of the words which appear above his signature, and the other party is entitled to assume that he has signified his assent to the contents of the document. In Mhlanga vs Mhlanga and Others (193 of 2022) [2022] ZWBHC 193,the court stated that  once a consent paper has been included in a court order which is extant, parties must comply with it unless it has been varied or set aside by a court of competent jurisdiction. There is no need for oral evidence to be led by the plaintiff . He or she must however, file with the court an Affidavit of Evidence which sets out the evidence that he or she is relying on. 11 .They must annex their original marriage certificate ,consent paper , an affidavit of waiver by the defendant and any other document that may be relevant .The defendant must sign an Affidavit of Waiver in which he or she waives his/her right to be served with subsequent process including a notice of set down in respect of the hearing of the matter .Where a defendant had previously defended the divorce action, he/she must file a notice of withdrawal to notify the court that he/she is withdrawing their opposition.The matter must then be set down for hearing on the unopposed roll. If the court is satisfied that the document filed by the parties are in order , the divorce will be granted.

An uncontested divorce is usually a quick ,convenient and cheap option. This is because the parties avoid a trial which consequently leads to less court room time and legal procedures. Legal representatives thus use less of their time on the case and so the fees payable will be reduced. Unlike in contested divorce proceedings where parties are required to give evidence and be cross-examined before a court, the parties in uncontested divorce proceedings are not required to attend court sessions if they are legally represented. In uncontested divorce proceedings the parties come up with their own agreement .This helps them maintain a cordial relationship as there will be no contestation where one party wins and the other loses.Parties in the diaspora are able to divorce on an uncontested basis without setting foot in Zimbabwe.

An uncontested divorce is therefore a convenient means by which parties can dissolve their marriage .It is amicable and consequently the best way to settle divorce issues between parties who may have to maintain some relationship because of the need for them to continue communicating about their children’s needs.

High Court Rules 2021
Matrimonial Causes Act [Chapter 5:13]
Mhlanga vs Mhlanga and Others (193 of 2022) [2022] ZWBHC 193
Mhlongwa vs Mhlongwa SC 98-05
R. H. Christie in his book Business Law in Zimbabwe, 1998, Juta & Co at p 67.
The chronicle ‘Out with marriage, In with divorce .100% rise in divorce cases in the High court’ February 25 2023
W. Ncube ‘Family law in Zimbabwe’ 1989