In a divorce matter, the jurisdiction of the court to hear the matter is based on the domicile of the husband at the time the divorce action is instituted. Domicile is the country one treats as his permanent home or lives in and has substantial connection with.

If you are a Zimbabwean citizen and you are granted a divorce order by a court in a country in which the husband was not domiciled, the divorce order will not have any force of law in Zimbabwe until it has been registered in accordance with the law.

Recognition refers to the process of considering the foreign decree of divorce as binding. In order for a foreign decree of divorce to be recognised in Zimbabwe as binding between the parties, an application for its recognition should be made to an appropriate court. If the foreign decree of divorce relates to a marriage contracted in terms of the Customary Marriages Act (Chapter 5:07) the application should be made to the Magistrates’ court. If the foreign decree of divorce relates to a marriage contracted in terms of the Marriage Act (Chapter 5:11) the application should be made to the High Court.

Requirements to be met for a divorce order to be registered

In order for the court to recognize the foreign decree of divorce as binding, the following requirements must be met:

1. The husband was not domiciled in the country which granted the decree of divorce ( he did not treat that country as his permanent home)
2. The law of the country in which the foreign decree of divorce was granted contains provisions which correspond substantially to the relevant provisions of section 3 of the Matrimonial Causes Act.

The aforementioned said Section 3 provides the following;

Without prejudice to any other basis of jurisdiction which the High Court has, the High Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of marriage, where the wife is the plaintiff or applicant –

If the wife has been deserted by her husband and, immediately before the desertion, the husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion, or

1. If the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at least two years immediately before the date of commencement of the action and is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe; or
2. If at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years and is still so residing.

The appropriate court must also be satisfied that the foreign divorce order is genuine and that it was granted by a competent court in the relevant country. The court recognizes the foreign decree of divorce by registering it as an order of that court. The court order is then submitted to the Registrar of Marriages.

The rationale behind the registration of the foreign divorce decree is that there is need to update the status of the parties to the divorce in the country which solemnized their marriage. The parties will be considered a married couple as long as they have not registered with an appropriate court.  The divorce decree handed down by a foreign court and submitted same to the Registrar of Marriages.

Re-marriage after divorce

After having successfully registered a foreign divorce decree in the appropriate court, either of the divorcees may want to marry a foreigner in the country in which they are resident. The party intending to re-marry must obtain a certificate of non-marriage from the Registrar of Marriages.

[1] Section 12(1) of the Matrimonial Causes Act

Are you aware that the case of Sadiki vs Muteswa HH-249-20 affirmed that the common law position that the mother of a child born out of wedlock (parents not married) is given the sole guardianship and sole custody of the child, denying the natural father of the child the same rights is unconstitutional and is no longer the position of the law Zimbabwe.

To understand the new position better, it is important to have a brief background of the previous common law position.

Old position of the law

Previously under common law the mother of a child born out of wedlock enjoyed inherent rights of sole custody and sole guardianship of the child. The father of a child born out of wedlock was just like any other third party whose only relevance was considered when it comes to the issue of payment of maintenance. The father would pay maintenance without even seeing the child he was paying maintenance for. The father of such child was equated to any third party and as such the custody rights that vested in the mother could only interfered by approaching the courts if the mother was not exercising such rights properly. It therefore followed that a father of a child born out of wedlock could not go to court and simply allege that because he is the father of the child, or he is richer than the mother, or he pays maintenance he can interfere with the rights of the mother. It was regarded that it was in the best interests of the child that the rights of the mother should not be interfered with.

New Position of the law

As highlighted above the case of Sadiki vs Muteswa HH-249-20 has brought changes in the law governing custody and guardianship of children born out of wedlock. The current and new position of the law is that the mother and father of a child born out of wedlock whether under general law or customary law can now have joint custody and joint guardianship over their minor child. The mother together with the father can exercise rights of guardianship in consultation with each other. If a decision of either parent on any matter in relation to guardianship is incompatible with the other parent’s wishes and likely to affect the life, health and morals of the minor chid and the parents cannot reach an agreement, either party may approach the High Court to determine which is in the best interest of the minor child.

The court ruled that the common law position discriminated a child born out of wedlock by treating the child as if he or she had no father save for the purposes of maintenance. The treatment of a father of such a child like any other third party in matters concerning custody, access and guardianship showed that the child was fatherless and deserving no paternal care or attention save for the purposes of maintenance. The child was in essence being regarded as a commodity of some sort given that without rights of access, custody or guardianship the maintenance contribution was essentially channelled through the mother.

It was also ruled that it is unfair discrimination to deny a child the benefits of associating with his or her biological father, which is an aspect of parental care, on the mere ground of the marital status of the parent at the time the child was born. This common law principle was inconsistent with provisions of Section 81(1) (a) and Section 56 (1) and (3) of the Constitution which provides for rights of children to parental care and non-discrimination of the basis of being born inside or out of wedlock. In conclusion, the new position of the law is that both parents of a child born out of wedlock can now enjoy joint custody and joint guardianship rights of their minor child. In deciding such cases the best interests of the minor child are of paramount significance.