1. Is it possible to initiate divorce proceedings when I am not in Zimbabwe?
This question can be answered in varying ways in the sense that the couple's status may or may not affect the ability to initiate divorce proceedings in Zimbabwe. First and foremost a divorce process can be adjudicated in a Zimbabwean court if the domicile of the husband at that time of instituting proceedings is Zimbabwe. Domicile in the legal sense means Someone's true, principal, and permanent home. In other words, the place where a person has physically lived, regards as home, and intends to return even if currently residing elsewhere. This is so even if as indicated one is resident elsewhere. Additional jurisdiction based on a Zimbabwean woman who is married to a foreign husband is listed in section 3 of the Matrimonial causes Act [Chapter 5:13]. In order to divorce a party must employ the services of a local legal practitioner and empower such practitioner with the mandate to correspond and litigate on their behalf and serve the respective spouse divorce proceedings. In conclusion the answer is yes one can initiate divorce proceedings if not resident in Zimbabwe but only if the husband's domicile is Zimbabwe or a woman who is Zimbabwean falls within the requirements as listed in section 3 of the Act
Having answered the issue surrounding jurisdiction, if you engage a legal practitioner to initiate or defend the Divorce action instituted at court you may or may not be required to attend the divorce proceedings. The main occasion where a litigant will be required to come to court will be to give verbal evidence and this usually takes place at the trial stage. The climax of the litigation procedure. Prior to that stage, your lawyer can be briefed remotely from your location and proceed with the claim/defense without the need of your physical presence. Contested divorces are the ones that will usually require verbal testimonies. Uncontested divorces (where the divorcing parties are in agreement on the divorce and its terms) can be resolved without the physical presence of the parties in the country.
2. I cannot locate my marriage certificate can I proceed with the divorce?
Yes you can. A duplicate certified copy can be obtained by your legal practitioner from the Registrar of Marriages on your behalf.
3. I have no knowledge of where my spouse is specifically resident what can I do?
Engage a local legal practitioner who will first make an application to the court to be permitted to serve the divorce proceedings differently from the usual 'in person' service required by the rules of court. The alternative mode of serving divorce papers can be on the immediate next of kin in Zimbabwe and via advertisement in the local paper. The legal practitioner can also serve on a spouse's email and in the local paper where the spouse is last suspected to have been. Please note that this application is separate from divorce proceedings and separate fees are charged for such a process.
4. I fear losing a means of livelihood if I divorce my spouse in the immediate term as I am dependent on my spouse, what can I do?
One can make an application through their legal practitioner for spousal maintenance either before proceedings or included in the summons for divorce. There are two ways in which maintenance is administered by our courts. In terms of section 7(1)(b) of the Matrionial causes act a court is empowered to make an order for the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.
Types of Spousal Maintenance
Permanent / Lifelong Maintenance is payable from date of divorce and usually on a monthly basis until such time as the receiver of the spousal maintenance passes away. (If circumstances of any/both of the parties change drastically after divorce, the Court may be approached to vary or even discharge the maintenance order accordingly.)
Rehabilitative Maintenance is for a specific, fixed period only. The fixed period cannot be shortened or extended.
Token Maintenance is when a small amount of maintenance is ordered. This usually happens when the maintenance payer is not in a financial position to afford maintenance at time of divorce, but there is a big change that he/she might be in a stronger financial position in the future. This will put the receiver of this (token) maintenance in a position to approach the Court at a later stage to ask for more maintenance if he/she can prove the need and affordability in the light of improved financial circumstances of the maintenance payer.
Interim Maintenance is maintenance payable pending divorce litigation. A special application is necessary before the Court will grant such an order.
Maintenance is not simply granted because one is a spouse or former spouse. The one applying must prove that they are in need of maintenance and in addition the court looks at the existing or expected means/wealth of each of the parties, their respective earning capacities, their financial needs and obligations, their ages, the duration of marriage, their standard of living prior to divorce, behavior/ conduct (if relevant to the breakdown of the marriage) and any other factor which the Court feels has to be taken into account.
Courts more commonly award rehabilitative maintenance. Young women/men who worked before marriage and are able to work and support themselves after divorce will not be awarded maintenance if they have no young children. If a young woman has given up work she will be awarded short term maintenance to tide her over until she finds a new job.
Middle aged women/men who have devoted themselves for years to the management of the household and care of the children should be given "rehabilitative" maintenance for a period long enough to enable them to be trained or retrained for a job or profession.
Elderly women/men who have been married for a long time and are too old to now go out and earn a living and are unlikely to remarry will require permanent maintenance.
5. I bought all the property with my spouse contributing very little, can they get 50% of the property?
The awarding of spousal property upon divorce is at the discretion of the court. The court looks at direct (tangible) and indirect (intangible) contribution of both parties on their combined assets whether bought prior, during or after separation (but before divorce). These assets are known as Matrimonial Property. The court attempts to make a judicial decision that best places the spouses in a position they would have been had the marriage relationship not dissolved.
There is certainly no 'one size fits all' approach when it comes to property distribution at divorce. It will be misleading to advise clients that 50% of matrimonial property will be given to each party as a rule of thumb. Each divorce case will be dealt with on its individual circumstances. It is best to get personalised legal advice from a legal practitioner to assist you better understand your personal matrimonial property and the peculiar circumstances that relate to it. This necessary consultative process of the only way for you to understand better what property distribution at divorce may turn out to be in your circumstances.
Authors note: you can read through an article on www.zenaslegalpractice.com specifically dealing with property distribution at divorce and the contribution theory by T.M Gombiro.
6. I want to continue staying with my children after the divorce is it possible?
Couples can agree on custody arrangements if their divorce is by consent, if no agreement is reached the court looks at the best interest of the child in determining who should have custody of the children. Yes be agreement and according to the courts discretion with application of the mentioned criteria, if spouses are not in agreement.
7. I have no money for legal fees but I know my spouse can afford can I still proceed with the divorce?
Yes you may via two optional routes, by means of legal aid provided by registered bodies e.g. Legal Aid Directorate , Zimbabwe Women Lawyers Association etc. or by means of an application known as in forma pauperis proceedings, this is a Latin legal term meaning "in the character or manner of a pauper". It refers to the ability of an indigent person to proceed in court without payment of the usual fees associated with a lawsuit or appeal. In these proceedings you approach the registrar of the High Court and apply for your case to be heard, the registrar reviews your case and if your application is justified a lawyer is assigned to you. If divorce is granted and you claimed costs and are awarded the costs by the courts the legal practitioner is entitled to his/her legal fees from said amount.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.