A number of people have been asking if initiating divorce proceedings will not affect their proprietary rights and whether or not the court’s decision will be against the guilty party if a party in a divorce matter is the one who caused the divorce. I have decided to share with you colleagues on the fault factor in divorce.
Before the coming of the Matrimonial Causes Act of 1985, divorce laws in Zimbabwe were based on the fault factor. Grounds for divorce then were adultery, cruelity, insanity as well as long term imprisonment. Since 1985 Zimbabwe adopted a “no-fault” divorce. This is a divorce based on “irreconcilable differences” or an “irretrievable break-down” of the marriage which signifies that there is no hope for reconciliation of marriage. Section 4 of the Matrimonial Causes Act [Chapter 5:13] recognises only 2 grounds for divorce and it reads, “A marriage may be dissolved by a decree of divorce by an appropriate court only on two grounds of “irretrievable break-down of the marriage” and “incurable mental illness or continuous unconsciousness” of one of the parties to the marriage. According to section 5 of the Matrimonial Causes Act [Chapter 5:13], “an appropriate court may grant a decree of divorce on the grounds of irretrievable break-down of the marriage if it is satisfied that the marriage relationship between the parties have broken down to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between them”. Where the parties are agreed that the marriage has broken down, it is not necessary for the court to enquire into the cause of the breakdown as divorce is now based on the no fault concept”. Even though the courts seem to have moved from the issue of digging into fault or guilt, such factors are now only taken as guidelines that a marriage has irretrievably broken down.
What this means put simply is that, when parties go to court over a divorce matter there is no need to tell the court what led to the divorce or whose fault it was that led to the divorce. This is so because such fault or misconduct of either spouse will not be taken into account in deciding whether or not to grant divorce and who will get what. The fact is that most marriages fail due to the fault of either party but this should not be used to penalise such party e.g. in diminishing such parties share of getting a certain share of the matrimonial property due to the fact that he or she caused the divorce or was at fault.