Divorce: Can I say no?

Zimbabwe Women Lawyers Association (ZWLA) assists a multitude of women through providing free legal aid to indigent women.

One of the key areas of legal aid provided is in assisting clients to obtain a divorce. Through this service, ZWLA has been able to disseminate information and debunk numerous myths circulating within our society pertaining to marriage laws and divorce.

One of those myths is the assumption that all divorces have to be obtained by way of consent. We have observed that society believes that in order for a divorce to be finalised, the party instituting divorce has to obtain consent or agreement from their spouse, and that the spouse is supposed to sign divorce papers expressing this consent.

We have discovered that our clients are under the assumption that if the spouse refuses to sign the divorce papers then it is impossible to obtain divorce. This assumption is completely false and a misunderstanding of the law.

This article will therefore clarify the law pertaining to divorce procedure.

Uncontested divorce

There are two types of divorce procedures, contested divorce and uncontested divorce. An uncontested divorce is whereby both parties are interested in terminating the marriage. Both parties are also in agreement as to the terms of divorce.

This means they agree on who shall have custody of the children, when the non-custodian parent shall have access to the minor children, how much the non-custodian parent should contribute towards the maintenance of the minor children and finally, on how they shall distribute the matrimonial property between themselves.

A divorce action is instituted by way of summons by the Plaintiff (the party who first brings the divorce matter before the Court) where all of these issues are explicitly stated.

If the Defendant (the other party/spouse in the matter) is in agreement with all of the terms of divorce prayed for by the Plaintiff then they can express their agreement by signing a deed of settlement expressing their consent which would have been drafted by the Plaintiff or the Plaintiff’s Legal Practitioners.

Thereafter the matter is presented before the presiding Judge who shall peruse the documentation filed by the parties.

If the Judge is content with the paperwork before him/her then the divorce will be granted. This is an expedient process of divorce which is favourable to both parties as they do not have to be dragged through a lengthy divorce. As stated above however, it is only possible where parties are both in agreement that they desire the divorce to be granted as well as where parties both agree on all of the terms of the divorce.

What then happens when parties are not in agreement? What if one party desires the divorce and the other does not? What if both parties desire the divorce but they are not in agreement on the terms of the divorce? Does that mean that the parties must continue in a marriage which they no longer wish to continue to pursue?

The answer is no. Where parties are not in agreement on whether they want the divorce or, they both want the divorce however, they are not in agreement on the terms of the divorce the procedure of the divorce is by way of contested divorce.

Contested divorce

Where parties are not in agreement on the divorce or the terms of divorce then the divorce may proceed by way of contested divorce.

Upon receiving the summons from the Plaintiff, the Defendant has to respond to the summons stating whether they want the divorce or their terms and conditions for divorce. The parties then exchange a series of paperwork until the matter is referred to trial. When the matter goes to trial, both parties put forward their claim before the Honourable Court.

This is best explained by way of an example. Simbarashe and Chipo have been married for 10 years until Chipo files for divorce citing irreconcilable differences.

Chipo claims for custody of their two minor children and their house in Mabelreign. Chipo also claims that Simbarashe is to contribute towards the maintenance of the minor children in the sum of US$100 per month per child.

Simbarashe receives the summons and reads them thoroughly. He does not contest that the marriage has indeed broken down due to irreconcilable differences. He also does not contest that Chipo be awarded custody of the minor children.

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