TIME has often proved that vows given before marriage officers and exhilarated guests are meaningless as marriages have often crumbled after parties have discovered their incompatibility.
When parties get joined in holy matrimony, their expectation is to enjoy the marriage or experience hardship together hoping that only the natural and inevitable phenomenon of death will separate them.
People have always cited various reasons when seeking to be disentangled from each other and such reasons have varied from differences in religious beliefs, cultural differences and at times, human weaknesses like a propensity to lie.
These and other reasons have often been relied upon to justify a divorce.
However, in this week’s article, the writer intends to discuss what constitutes legal grounds for divorce for the benefit of readers because it is not always that what people perceive as a ground suffices under law to be such.
The Matrimonial Causes Act [Chapter 5:13] (“the Act”), provides guidelines of what a court must be satisfied of before a divorce can be granted. There are two expandable grounds for divorce and these are:
i. Irretrievable breakdown of marriage,
ii. Incurable mental illness or continuous unconsciousness of one of the spouses.
The Act further goes on to explain circumstances that can be held to mean an irretrievable breakdown of a marriage relationship.
Thus, where parties have not lived together as “husband and wife” for a continuous period of at least twelve months immediately before the commencement of the divorce, a court can grant an order of dissolution.
In living together for the relevant period, parties must live as “husband and wife” and not just ordinary cohabiting.
Courts have interpreted this clause to mean that where spouses have not been intimate for the period of twelve months, then they can be held as not having lived together as husband and wife.
Where a defendant commits adultery, which the plaintiff regards as incompatible with the continuation of a normal marriage relationship, the court can still be able to divorce the parties.
A notable qualification in this provision is that the adultery must be “incompatible with the continuation of a normal marriage”, and as such depending on the circumstances of the case, certain non-grievous adultery incidences can be pardonable. It appears serial adulterers or those who brazenly indulge in hurtful marital aggression can be affected by this provision.
Circumstances which qualify as irretrievable breakdown of marriage have also been held to include where a defendant has been sentenced by a competent court to a period of at least fifteen years.
Where again a defendant has been declared a habitual criminal, or has been sentenced to a period of extended imprisonment, an affected spouse can apply for divorce successfully.
A spouse who becomes a jail bird and gets detained for a continuous period of, or interrupted periods amounting to 10 years can also be divorced.
A plaintiff can also get divorce where he or she can prove that the defendant, has during the subsistence of the marriage, acted with cruelty, mental or otherwise.
This provision can be employed in cases against spouses who are battered or those who inflict torturous emotional harm to their partners without regard to their emotional wellbeing.
Spouses who habitually subject themselves to influence of liquor, or drugs to the extent of being a nuisance can also qualify as divorce candidates.
Alcoholics and other irresponsible drug abusers are therefore warned, for indeed if a court is satisfied, a marriage can be brought to an end purely on this basis. Surprisingly though, many spouses especially of the female gender continue to be brutalised and endure marital hardship at the hand of drunkards for the sole purpose of wanting to save their marriages.
It appears that traditionally, it is taboo to divorce a husband or female spouse merely because he/she is an excessive alcohol imbiber or partaker of mind twisting drugs.
Mental illness or unconsciousness shall qualify as a ground of divorce where it occurs six months prior to the commencement of the divorce action. In addition, the mental illness or unconsciousness must be incurable and certified as such by at least three psychiatrists.
One common question asked by individuals is whether a divorce can be granted where one spouse is still passionately in love with one seeking a divorce.
The position of the courts which is supported by the Act is that even where a fellow spouse still has feelings for the other, but the one seeking the divorce is now alienated, a court will be left with no option but to divorce the parties.
It will not matter how much the other party’s feelings are like, for as long as the marriage is standing on one leg it will have to be brought to an end.
The court must only be satisfied that marriage has now irreversibly broken down. Before a court can grant a divorce, the law allows it to consider having the estranged parties referred to marital counselling for purposes of reconciliation.
This can occur where the court is of the view that the marriage is capable of being salvaged. In terms of the same provision, a party who has suffered from the mental disease or defect and has been under care and treatment for a continuous period of five years is also capable of being divorced.
It can be observed therefore, that it is not just any ordinary illness but one that qualifies under the Act and one that is certified by a qualified psychiatrist.
So, next time before one considers a divorce, one must be sure that one or more of the discussed grounds fits into his or her circumstances.
The high incidence of divorce and its causes is a sociological and psychological problem better left to the relevant experts. The role of lawyers, however, is solely to interpret the law and enforce it for the protection of people’s rights
Muza is a Harare-based legal practitioner. He writes in his personal capacity. He can be contacted on muzalaw@gmail.com.