Court 'changes' divorce law

THE courts have no power to compel couples to remain in marriage when one party insists on divorce, the High Court has ruled.

Even if the other party feels he or she is still in love, the fact that one is no longer interested in the marriage should end the union.

Justice Esther Muremba granted a decree of divorce in favour of a Harare woman, Elta Matore, despite the fact that her former husband of 12 years, Enock Johannes Matore, was insisting on trying to salvage the marriage through prayer.

Matore was strongly opposed to the divorce, arguing that he still loved his wife and that his wife was only possessed by a spirit of divorce. Elta told the court that the marriage was irretrievably broken as the couples had differences on financial issues.

She argued that Matore's mother was running the family's finances and daily life and he would neglect his immediate family to cater for his father and mother. Elta said she would literally surrender her salary to the mother-in law and Matore insisted that there was no problem in him taking care of his parents.

The court then ruled that the parties were not prepared to adjust and reach a consensus, they had not been staying together for at least three years, hence their marriage had irretrievably broken down.

Elta insisted in court that she was no longer interested and that she wanted a divorce. To that end, the judge ruled that the court had no legal basis to force her to continue in marriage when she personally insisted on divorce and that she had told the court orally and in papers that she had lost love and affection for the man.

"If there is no love and one insists it's the end, the question is: on what basis would a court then order the parties to reconcile and continue to stay together as husband and wife in a normal marriage relationship when one party is unwilling?"

Justice Muremba said the conduct of the parties in court showed that there was no longer room for reconciliation. "

Upon considering the totality of the evidence before the court and having considered the law applicable, I find no reason why the divorce as prayed for by the plaintiff shouldn't be granted.

"There's no basis upon which this court can force the plaintiff to remain in love and in marriage to the defendant when clearly, from her stance in court, the issuance of summons and living apart from the defendant, she is desirous to end the marriage," ruled Justice Muremba.

The court observed that there was hostility between the parties as they gave evidence in court. "The mode of talking in court clearly showed hostility between the parties which supports that the parties had irreconcilable differences and that they are incompatible," she said.

It was also the court's finding that Matore was simply trying to impose himself on the woman as a way of fixing her.

"I read the defendant to be an ingenuine man who insisted on marriage in form simply to fix the plaintiff…The defendant sought to impose himself on the plaintiff under cover of biblical desire to be divorced only by death.

"Self imposition wouldn't amount to marriage as envisaged by the law. The contract has to be between two consenting parties," ruled Justice Muremba. The court also found that Matore's evidence was riddled with inconsistencies.

The couple was married on February 21, 2003, and the union was blessed with two children who are still minors. Problems started in 2007 when the couple migrated to South Africa for employment.

They had challenges in securing jobs in line with their professional qualifications. The couple had financial constraints as well as financial differences. When it came to budget issues, it was undisputed evidence that Matore would put his immediate family last while he prioritised his mother, siblings and cousins.

Matore argued in court that he had an obligation to help his relatives since he was the first born in his family.