No fault for initiating divorce

By Isabel Palasida

More often than not, many women are living in marriages that they are not comfortable staying in.

They are afraid to initiate divorce proceeding for unfounded fears that are associated with that particular move.

Women in abusive and unproductive marriages do not want to take the first move lest they are “penalised”.

However, this line of thinking is not only confined to women but it is a general perception among citizens.

Many are still under the mistaken belief that whoever takes the initiative to divorce will be penalised, they would lose out.

In the same vein, those who would have faulted in their marriages for one reason or another are hesitant to approach the courts since they are afraid that because they are at fault, they would pay heavily for not only approaching the court when they are in fact the guilty party but also for taking the initiative in approaching the court first.

Their thinking is based on the “fault system”. The opposite would be the “no fault system”.

On the other hand the no-fault divorce system takes away the potentially embarrassing and confrontational requirement of stating fault-based grounds by providing for the dissolution of a marriage on a finding that the relationship can no longer continue.

The court therefore will not be blinded by smoke raised by either party in trying to fault-find either party.

Up until 1985 the laws of the country relied on the fault system and thereafter, that changed.

As we speak the courts now will not take into account or rather rely on this particular aspect of who would have caused the breakdown of the marriage.

As a matter of fact, with this new system, a party in a marriage can create a “fault” in order for the other party to file for divorce and can and will get away with it since the fault system is no longer in operation.

That is how fundamental this shift brought in the institution of marriage.

The Matrimonial Causes Act (Chapter 5:13) in fact captures reasons why a decree of divorce can be granted.

There are only two reasons captured therein. And these are irretrievable breakdown of a marriage and incurable mental illness or continuous unconsciousness of one of the parties to the marriage.

Unfortunately, the same Act does not define the term “irretrievable breakdown” but simply gives examples the court may take into account in arriving at a decision of granting a decree of divorce.

With the moving away from the fault system to the no-fault system, the court’s powers in granting a decree of judicial separation for a period pending either restoration of a normal marriage life or divorce, was also taken away.

However, if the court is satisfied, based on evidence presented to it, that the marriage can be restored, such decree can be declined.

Therefore the court’s position in such a matter is there to simply establish whether in fact the marriage has broken down irretrievably or not.

Divorce matters may take long to be resolved in court and one party refusing to accede to a divorce does not necessarily facilitate the court’s refusal to grant the divorce but it simply prolongs the divorce.

If a judge for instance, at Pre-Trial Conference, asserts that indeed the marriage has irretrievably broken down, a decree of divorce can be granted at that stage.

However, if plaintiff’s prayer is more than that of a decree of divorce for instance but also that of custody, sharing of property and or maintenance, then the Pre-Trial Conference judge directs that the matter proceeds to trial.

The plaintiff would have prayed for what is known as ancillary relief over and above a decree of divorce.

More often than not, the issues that are then referred to trial include but not limited to custody, maintenance including spousal, access, sharing of property and legal costs.

These are the issues that normally elongate the duration of divorce proceeding.

The ancillary issues raised above also need to be looked at in detail. Since issues of maintenance, custody and property sharing have been dealt with in previous articles, this article will not therefore delve into those.

The one issue that can be discussed herein is that of access. When parties divorce, custody is given to either of the parties.

It is possible but rare in the Zimbabwean law, for parties to have joint custody and as such the other party who is not granted custody needs to have access to the minor children.

The whole idea of access to the non-custody parent is for him or her to take a parenting role.

In most instances many are of the view that the maintenance is the most vital thing in such situations.

Even though this might be true to a certain extent, access is equally important.

In fact, some people are of the view that because one party, during the subsistence of the marriage, never spent time with the child(ren) and or never assisted with homework for instance, therefore they are not entitled to access.

This is not so correct. The only reasons that the court looks at when making a decision in this regards is the best interests of the children and that includes among others looking into whether the other party has been violent and abusive towards the children or that his or her social life or domestic arrangements are such that exposure to them would injure the best interests of the said children.

Many parties in such instances will bring in the aspect that because the other party, for instance, was having an extra marital relationship, therefore it would not be in the best interests of the minor child(ren).Best interest of the parties does not come into the fray.

However, in some instances the courts have declared that sooner or later the child(ren) would know that the other party is having a relationship and as such that should not be a reason why a party is not granted reasonable access.

The long and short of it is that the court will look at whether the non-custodial parent poses any danger to the life, health and or morals of the minor children.

The issue of fault finding even in this instance of access has since lapsed and can no longer be used.

Meanwhile, issues to do with divorce, generally, and children of the marriage in particular, are an emotional issue.

The ‘guilty party’ cannot be penalised for taking the initiative to file for divorce since whoever feels that he or she requires a decree of divorce should simply approach the court.

Therefore women should not be bogged down in marriages that they are not comfortable in.

They should take the initiative without the fear of being penalised and with this new system, with the no fault system no one will be penalised. The Herald.