Are you contemplating divorce or already going through divorce proceedings? If so, we know how tough it can be and we understand it is an emotional process, so mistakes are bound to happen. To assist you we have identified key issues that you must be aware of during divorce proceedings.
A divorce may either be contested or uncontested. An uncontested divorce is when both parties agree that their marriage has irretrievably broken down and settle with regards to the custody of their minors, maintenance and the distribution of property. On the other hand, in a contested divorce the parties are adversarial and unable to agree on the terms of the divorce. Common areas of disagreement include but are not limited to; the grounds for divorce, custody, access, distribution of property and maintenance. However, at any point, a contested divorce can become uncontested if the parties agree to all the issues. An uncontested divorce is less time-consuming and not as expensive as a contested divorce.
Who can get a divorce?
- Parties in a civil marriage- this is a marriage governed and registered under the Marriage Act [Chapter 5:11) formerly known as Chapter 37.
- Parties in a registered customary law union- this type of marriage is governed and registered under the Customary Marriages Act [Chapter 5:07].
- Parties in an unregistered customary law union (UCLU)- an unregistered customary law union is not given full recognition under the law as a marriage except for certain limited purposes; therefore, there is no “divorce” through the courts as in the other types of marriage. However, parties may approach the court for assistance with the distribution of property.
- Parties in 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. However, parties may also approach the court for assistance with the distribution of property.
The Divorce Process
Divorce proceedings are commenced once the plaintiff serves the summons and a declaration on the defendant. The papers must be served personally to the defendant by the Sheriff of the High Court. If the couple has been separated for a long period and the plaintiff is not aware of the home or work address of the defendant, they may make use of substituted service. This is a legal remedy that allows a plaintiff to serve court processes on a party whose location is unknown.
Legal Grounds for Divorce
Zimbabwean Laws recognise only 2 grounds for divorce. These are set out in section 4 of the Matrimonial Causes Act [Chapter 5:13] as:
The court considers a marriage to have irretrievably broken down when;
- 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.
- The defendant has, during the subsistence of the marriage —
- treated the plaintiff with such cruelty, mental or otherwise; or
- habitually subjected himself or herself, to the influence of intoxicating liquor or drugs to such an extent; as is incompatible with the continuation of a normal marriage relationship.
The distribution of Assets
The distribution of assets is one of the most important aspects of the divorce. The considerations made by the court on the distribution are presented in section 7(4) of the Matrimonial Causes Act. These are the income-earning capacity, assets and other financial resources which each spouse has or is likely to have in the foreseeable future; the financial needs, obligations and responsibilities which each spouse has or is likely to have; the standard of living of the family, the age and physical and mental condition of each spouse; 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 of any benefit, including a pension or gratuity, which such spouse will lose as a result of the dissolution of the marriage and the duration of the marriage.
Custody and Maintenance of the Minor Children
The custody of the minor children is also part of the divorce proceedings. Custody of a child is the right to decision-making on the day-to-day activities of a child by the custodian parent. Custody of the minor children is based on the best interests of the child principle. In Zimbabwe custody is usually granted to the mother of the child therefore the father must prove that the mother of the child is unfit to manage the responsibilities of a custodian. Custody is also awarded to one parent as Zimbabwe does not recognise joint custody. However, regardless of which parent is granted custody the maintenance of the minor child is the shared responsibility of both parents. Parties may agree on the maintenance contributions they will each make however if they are not in agreement the decision will be made by the court. The court will take the incomes of both parents as well as the lifestyle of the child into consideration when deciding on the maintenance contributions.
Lastly, spousal maintenance may be sought by either of the parties as part of the divorce proceedings or post-divorce. The court is guided by the Matrimonial Causes Act (Chapter 5:13) when dealing with post-divorce spousal maintenance. The spouse seeking maintenance will have to prove to the court that they are not able to maintain themselves and therefore need assistance from their former spouse. An application may be made by either party for the upward or downward variation in spousal maintenance at any time after the divorce however they will have to prove that they have been a change of circumstances warranting the variation.
If parties to a marriage are in agreement that their marriage has irretrievably broken down or one of the spouses has an incurable mental illness or has been continuously unconscious, the divorce will proceed as an uncontested divorce. If they are not in agreement either of the parties may contest the divorce. During the divorce proceedings, the court will decide on the custody of their minors, maintenance and the distribution of property.
Whether you settle for a contested or uncontested divorce you will require legal representation. At JPLP we have a qualified lawyer ready to assist you with the entire process.