Second wife joins divorce proceedings

THE High Court has granted permission to a second wife to be part of divorce proceedings between her husband and his first wife.

High Court judge Justice Esther Muremba accepted a joinder application by Sylvia Mupombwa to be part of the proceedings between her husband Tawainga Arnold Katsvairo and his first wife Matirasa Katsvairo.

Justice Muremba observed that Mupombwa had clearly established that she has a direct interest in the matter and should be included in the proceedings to defend her interests.

"The applicant's (Mupombwa) non-joinder to the divorce action will have consequences to the respondents since she can still sue the second respondent (Tawainga) at any time for distribution of the same property the first respondent (Matirasa) is suing for in the divorce action.

"Clearly this will result in two separate matters or legal proceedings against the second respondent for the distribution of the same property in terms of the Matrimonial Causes Act.  

"The end result is multiple litigation which can be circumvented by joining the applicant to the divorce action between the respondents," Justice Muremba ruled.

In her application, Mupombwa claimed that she had a direct interest in the proceedings as she contributed in acquiring the property that was going to be distributed between the two.

Mupombwa and Tawainga entered into an unregistered customary marriage 14 years after the latter had been married to Matirasa.

She claims that the couple registered a customary law marriage on November 8, 1989 under the African Marriages Act which was later declared null and void by the courts on September 8, 2020.

Mupombwa insisted that she had no prior knowledge that the respondents had a civil marriage but instead she had believed the marriage between them to be customary.

"In support of her application for joinder in the divorce matter the applicant made the following averments.  

"At all material times, based on the information of the respondents, the applicant believed that the marriage was a customary marriage which was potentially polygamous.

"She only became aware that they had a civil marriage when she received summons for a claim for adultery charges from the first respondent (Matirasa)…in 2019," reads Mupombwa's application.

She argued that if the application for joinder was denied, she would suffer irreparable damage as the respondents would unfairly profit from the efforts she had contributed during her marriage to Tawainga.

"The applicant averred that she had also laboured and contributed immensely for more than 40 years towards the marriage and accumulation of the matrimonial property which is subject to the divorce matter.  

"The applicant has rights over the matrimonial assets listed in the divorce action and is therefore entitled to an equitable share of those assets.

"The applicant's rights will certainly and seriously be affected by the judgement that will be made in the divorce matter. If the assets are distributed only between the respondents without her being heard she will suffer irreparable harm whilst the respondents will be unjustly enriched at her expense," Mupombwa averred.

Matirasa challenged the application, alleging that Mupombwa had known of their civil marriage as she had stayed in their home in Mutoko for two months in 1979 where she had access to their wedding photographs.