Divorce is the termination of a marriage. There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed divorce. This article will focus on the uncontested divorce. Uncontested divorces are often referred to as simple divorces. An uncontested divorce occurs when the parties agree on all issues required to conclusively and effectively terminate their marriage, leaving nothing of consequence that is disputed or unresolved. In other words the parties must agree on the dissolution of the marriage, custody and maintenance of the children, the exercise of access to the children by the non-custodian parent, as well as the division of the matrimonial assets.
Filing Divorce Papers with the Court
The High Court can dissolve all marriages regardless of type.
A court has jurisdiction in a divorce action if one or both parties are:
domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
Ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in Zimbabwe for a period of not less than two years immediately prior to that date.
Additional jurisdiction
Section 3 of the Matrimonial Causes Act extends the court’s jurisdiction as follows:
Without prejudice to any other basis of jurisdiction which the High Court has, the High Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of marriage, where the wife is the plaintiff or applicant:-
If the wife has been deserted by her husband and, immediately before the desertion, the husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion; or
If the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at least two years immediately before the date of commencement of the action and is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe; or
If at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years and is still so residing.
GROUNDS FOR DIVORCE
There are now only two recognized grounds for divorce:
Irretrievable breakdown of a marriage
Incurable mental illness or continuous unconsciousness of one of the parties to the marriage.
THE PROCEDURE FOR DIVORCE
It is highly advisable to engage the services of a lawyer even if the divorce is uncontested.
Preliminary letter
At the outset of the matter it is courteous for a legal practitioner to write to the other spouse setting out their client’s proposals for settlement. This letter should be pleasant in tone and conciliatory as this has the effect of encouraging a settlement. Where appropriate the lawyer could suggest a meeting to try and settle any outstanding matters.
2. Summons
A summons in Form 30A is then prepared setting out the particulars of the parties and the Plaintiff’s claim.
Declaration
The essential averments of a Declaration for divorce are:
The name, address and employment of the plaintiff;
The name, address and employment of the defendant;
The domicile of the husband unless jurisdiction is established in terms of section 3 of the Matrimonial Causes Act;
The place and date of marriage
Details of the minor children including their dates of birth;
Custody of the minor children;
Grounds for the divorce. These need not be detailed.
Maintenance and access
A list of thee matrimonial assets and how the assets would be desolated upon divorce.
Service
It is embarrassing for a party to receive a matrimonial summons at work. If possible, service should be at the party’s home or within the Sheriff’s office rather than at his place of employment. After service of the Summons on the Defendant the parties can then proceed to have the other documents drawn up by their lawyers for their signature.
Please note that where the Defendant is resident outside Zimbabwe, there will be need for the Plaintiff to apply for leave to have the Summons served outside the country. This is what is known as an application for Substituted Service.
Affidavit of the plaintiff
In terms of rule 227B of the High Court Rules it is unnecessary for the plaintiff to appear in court to give evidence at the hearing if an affidavit prepared by the plaintiff is filed with the Registrar by 10.00 am on the Friday preceding the date of set down. The marriage certificate, consent paper and the Defendant’s Affidavit of Waiver must be annexed to the affidavit.
In the affidavit the plaintiff must affirm the signature of both spouses on the marriage certificate and the consent paper and the defendant’s signature on the affidavit of waiver (if appropriate). The plaintiff must also set out the basis for jurisdiction, the grounds for the divorce and if there are minor children aver that it is in their best interests that custody is awarded to the person to whom the award will be made. Any affidavit signed outside Zimbabwe and must be notarised i.e. signed before a notarial public.
Consent Paper
It is desirable to prepare and sign a consent paper which sets out all the agreed issues.
Defendant’s Affidavit of Waiver
The defendant must depose to an affidavit of waiver in which they waive the need for them to be served with the notice of set down and agrees for the matter to be set down for hearing without notice.
Convenience
An uncontested divorce can be finalized in a few weeks’ time depending on the court roll. It is not necessary for both parties to appear together in court.
The process of an uncontested divorce is relatively simple, quick and cost effective. This process avoids antagonism between the parties.
COSTS
An uncontested divorce with minimal negotiations but without the need to apply for Substituted Service will cost the Plaintiff approximately $1400.00. An application for Substituted service costs approximately $600.00. A defendant requiring legal representation in an uncontested divorce where there are minimal negotiations is likely to pay approximately $800.00 in legal fees.
Kanokanga & Partners
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