Hilary Muza 
TIME has often proved that vows made before marriage officers and exhilarated guests are meaningless as marriages have 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 about 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 I intend 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 with before a divorce can be granted. There are two expandable grounds for divorce and these are:
a Irretrievable breakdown of marriage,
a 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 12 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 cohabitation.
Courts have interpreted this clause to mean that where spouses have not been intimate for the period of 12 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, 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 15 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 successfully apply for divorce.
A spouse who becomes a jail bird and is detained for a continuous period of, or interrupted periods amounting to 10 years, can also be divorced.
Spouses who habitually subject themselves to the influence of liquor, or drugs to the extent of being a nuisance can also qualify as divorce candidates.
The requirement that a spouse seeking a divorce must satisfy is that the degree of alcohol or drug abuse is such that it is harmful to the continuation of a normal marriage relationship.
Surprisingly though, many spouses, especially females, continue to be brutalised and endure marital hardship at the hands of drunkards for the sole purpose of trying to save their marriages.
It appears that traditionally, it is taboo to divorce a husband or female spouse merely because he or she is an excessive alcohol imbiber or partaker of mind twisting drugs.
Mental illness or unconsciousness shall qualify as a ground for divorce where it occurs six months prior to the commencement of a divorce action.
In addition, the mental illness or unconsciousness must be incurable and certified as such by at least three psychiatrists.
Next time one ponders divorce, one must ensure that one or more of the discussed grounds exist in order to be successful. One common question asked by individuals is whether a divorce can be granted where one spouse is still passionately in love with the one seeking a divorce.
The position of the courts, which is supported by the Act is that, even where a spouse still has feelings for the other but the one seeking a 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.
Before a court can grant a divorce, the law allows it to consider having the estranged parties referred to marital counselling for possible reconciliation. This can only occur where the court is of the view that the marriage is capable of being salvaged. 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.
