HOW TO OBTAIN A DIVORCE ORDER IN UNCONTESTED DIVORCE PROCEEDINGS IN ZIMBABWE

WHAT IS AN UNCONTESTED DIVORCE?

Divorce proceedings are said to be uncontested when the parties to the marriage are agreed on all issues to do with the divorce. This means that the parties must agree on the following:

1. (i) That the marriage has irretrievably broken down to such an extent as to be incompatible with the continuation of a normal marital relationship
2. (ii) Who will have custody of the minor children of the marriage, if any
3. (iii) The access or visitation rights which the non-custodian parent will have to the minor children
4. (iv) The amount of maintenance the non-custodian parent will contribute monthly towards the upkeep of the minor children
5. (v) How the assets of the parties will be shared upon divorce.

INSTITUTING THE DIVORCE PROCEEDINGS

Divorce proceedings are initiated by way of action proceedings. This means that they are initiated by way of a summons and not a court application. The party initiating the divorce proceedings is called the plaintiff whilst the party against whom the divorce proceedings are brought is called the defendant. Attached to the summons will be a Declaration. A Declaration is a written statement which the plaintiff submits to the court setting out the following:

1. (i) The names and physical addresses of the parties
2. (ii) The type of marriage the parties have, when and where they got married
3. (iii) The basis upon which the court has jurisdiction to entertain the matter
4. (iv) The grounds for divorce
5. (v) The names and dates of birth of minor children born of the marriage
6. (vi) Who will have custody of the minor children of the marriage upon divorce
7. (vii) How much the non-custodian parent will contribute monthly towards the upkeep of the minor children until they reach the age of majority or become self-sufficient, whichever occurs first.
8. (viii) The access/visitation rights which the non-custodian parent will have to the minor children of the marriage
9. (ix) How the assets of the parties will be shared upon divorce

SERVICE OF THE DIVORCE SUMMONS

The divorce summons must be served personally on the defendant by the Sheriff of the High court. Personal service of the divorce summons on the defendant is required because divorce affects one’s status. Where the defendant’s whereabouts are unknown, a separate application (application for substituted service) will have to be made to court for leave to serve the divorce summons by other means such as having the divorce summons published in a daily publication which circulates widely. Where the defendant is to be served with the summons outside Zimbabwe, a separate application (application for edictal citation) will have to be made to court for leave to have the divorce summons served outside the country.

THE PROCEDURE SUBSEQUENT TO SERVICE OF DIVORCE SUMMONS

1. (i) The plaintiff and defendant prepare and sign a consent paper setting out what the parties have agreed on
2. (ii) The defendant signs an affidavit of Waiver saying they do not wish to defend the matter, that they do not wish to be served with any notice of set down and that they have signed a consent paper and identifies the signatures on the consent paper and marriage certificate
3. (iii) The plaintiff after satisfying themselves by seeing the affidavit of Waiver deposes to an affidavit of Evidence incorporating the consent paper and affidavit of Waiver
4. (iv) The matter is then set down for hearing (The parties are not required to attend court)

THE ADVANTAGES OF UNCONTESTED DIVORCE PROCEEDINGS

It is in everyone’s interests that matrimonial claims should be settled by agreement rather than by an adversarial battle in court. The financial resources of the family are not whittled away by the often-substantial legal costs involved. The emotional resources of the family are not concentrated on conflict. The future relationship between the adult parties is not soured,

or further soured, by that conflict. This is not only good for them but also for their children, whatever their ages, and for the wider family. It is for these reasons that there are processes, both within the procedures of the family court and independent of them, for helping the parties to reach agreement on the practical consequences of the breakdown of their relationship.