Uncontested Divorce in Zimbabwe-By Tatenda Mpapa

The divorce process besides the legal costs involved , is an upsetting and emotional experience on the parties involved as well as their children, and close relatives. There are basically two types of divorces in Zimbabwe .These are contested divorce (opposed) and an uncontested divorce (unopposed). A contested divorce is where parties to the marriage fail to agree on some aspect(s )of the divorce. An , uncontested or unopposed divorce on the other hand is when the parties to the marriage are agreed on all aspects of the divorce. The focus of this article is on uncontested divorce. This write up will firstly explain what an uncontested divorce is, and the writer will further outline the process of obtaining an uncontested divorce including the drawing of pleadings.

An uncontested divorce is also known as an unopposed divorce action. It occurs when both parties to the marriage are in complete agreement on all aspects of the divorce, leaving nothing of consequence that is disputed or unresolved. Parties may agree on the following;

• i. The granting of a decree of divorce.
• ii. Division of assets and property between the parties.
• iii. Access to minor children.
• iv. Custody and maintenance of minor children if any.

Before settling any pleadings for divorce, it is advisable to address a letter to the potential defendant( the person being sued ), in which the potential plaintiff’s demands regarding the divorce proceedings are clearly set out. The importance of the letter is that it will alert the potential defendant of the impending divorce action and elicit their response to the issues raised therein. It may fetch an outright agreement on all or the major issues or a counter offer on the issues. Apart from showing courtesy and good faith, the letter invariably becomes the basis of negotiations and the ultimate settlement of the divorce process.

Once agreement has been reached on all the issues arising from the divorce, the next stage is the settlement of the pleadings in accordance with the agreement reached during the negotiation process.

The process is initiated by a summons commencing an action which may be issued in Form No. 29 of the High Court Rules (2021), to which a copy of the Plaintiff’s declaration is annexed. In the declaration the following averments are set out; the names and address of the parties, the type of the marriage contracted by the parties, the jurisdiction of the court, grounds for divorce, the minor children born of the marriage if any, custody and access rights, maintenance, and division of assets between the parties.

These are then filed with the High Court and issued by the Registrar and thereafter served by the Sheriff on the Defendant personally, upon payment of the requisite Sheriff’s fees. Personal service of the divorce summons on the Defendant is a mandatory requirement in terms Rule 68 (2) of the High Court Rules. Personal service is a must in divorce matters because divorce changes one’s status from married to divorced . In the event that the whereabouts of the Defendant are unknown, an application for substituted service is made by the Plaintiff. Also, where the Defendant is outside of Zimbabwe, a chamber application for edictal citation is made to obtain leave of the court to serve process outside Zimbabwe. The Sheriff’s office is required to render a proper return of service after effecting service of the summons and declaration and the original copy of the return of service is then filed with the Registrar.

The Plaintiff must file the various processes prepared and signed by the parties in regulating the divorce process. These will comprise of an Affidavit of Waiver signed by the Defendant confirming service of the summons and their lack of intention to defend the proceedings. The affidavit will also waive the right conferred upon the Defendant by the rules, to receive notices to purge non-appearance and notices of set-down of the matter and identifies the signatures on the consent paper and marriage certificate.

The processes will also include a Consent Paper in which parties consent to the granting of the decree of divorce and record their agreement on the ancillary issues such as property distribution, custody of minor children and maintenance. The consent paper must be signed by both parties in similar fashion to an agreement, for that is what it is.

The Plaintiff must file, within the times limited by the rules, an Affidavit of Evidence in terms of which they set out all the evidence relating to the issues for determination in the divorce proceedings as they would otherwise have done had they physically appeared and adduced evidence. That affidavit will constitute the evidence on the basis of which the divorce will be granted.

For the matter to be properly set down for hearing, Counsel for the Plaintiff must do the following; Bind, paginate and index the documents filed of record, including the Sheriff ‘s return of service, together with the original copy of the Marriage Certificate, Draft Notice of Set Down, and Draft Order incorporating the terms of the relief to be granted by the Court / the order for divorce and ancillary relief. It is important to note that, the Draft Order must tally with the terms in the Consent Paper.

The parties are not required to attend court.Only the Plaintiff’s lawyer attend court to apply for the granting of the divorce on the basis of documents filed with the court. This is typically a short court appearance where the judge reviews the submitted documents and grants the decree of divorce if the papers are in order.

• (a) Reduced Cost: The streamlined process generally translates to lower legal fees compared to a contested divorce.
• (b) Faster Resolution: Uncontested divorces are typically resolved much quicker than contested cases, which can drag on for months or even years.
• (c) Reduced Stress: The absence of courtroom battles and legal disputes minimizes stress and allows for a more amicable resolution.
• (d) Confidentiality: The terms of the settlement agreement remain private, unlike contested
• (e) The parties are not required to personally attend court