Supreme Court declares divorce consent dispute a nullity

THE Supreme Court of Zimbabwe has set aside proceedings in a protracted divorce and child custody dispute after finding that both the litigants and the High Court had mistakenly treated a private agreement as a valid court order.

The ruling, delivered by Nicholas Mathonsi, with Samuel Kudya and Joseph Mafusire concurring, arose from an appeal involving former spouses Dhiren Shantilal Govan and Reena Narendra Govan.

At the centre of the dispute was a document described as an "interim consent order", signed by the parties' legal representatives in November 2024 to regulate custody and access arrangements for their nine-year-old daughter while divorce proceedings remained unresolved.

The arrangement was relied upon for several months as the divorce trial was repeatedly postponed. However, the Supreme Court found that the document had never been formally adopted or issued by a judge and therefore did not constitute a court order.

Justice Mathonsi expressed concern over the prolonged nature of the litigation, noting that the divorce proceedings had dragged on for years despite custody being the only outstanding issue.

"The parties have chosen to repeatedly postpone the commencement of the divorce trial, a trial in which the only issue is custody of the child," he said.

The court held that despite its title, the document remained nothing more than a private agreement between the parties.

"It is not a court order but remains the signed agreement of the parties," the judgment stated.

The dispute escalated after Reena Govan approached the High Court seeking to have the arrangement set aside under Rule 21(2) of the High Court Rules, arguing that she had signed it under pressure and that it no longer served the best interests of the child.

The High Court granted the application and set aside the arrangement, allowing the divorce proceedings to continue.

However, the Supreme Court found that the application itself was legally defective because Rule 21(2) only applies to consent judgments formally entered by a court.

"The respondent could not lawfully approach the court a quo for a remedy in terms of r21(2) to set aside a non-existent consent order," the court ruled.

The judges emphasised that the rule could only be invoked where a judge had issued a judgment based on the consent of the parties.

"There is no doubt that what triggers the remedy provided for in sub rule (2) of r 21 is the existence of a judgment given by a judge in accordance with the consent of a defendant," the court said.

Justice Mathonsi also criticised the High Court for failing to establish the true legal status of the document before entertaining the application.

"The entire proceedings before the court a quo were irregular," he said.

"Nothing valid could come out of them."

Invoking powers granted under the Supreme Court Act, the court declared the proceedings a nullity and set them aside in their entirety.

The judgment noted that neither the parties nor the High Court had identified the procedural flaw during the litigation process.

"None of the parties picked up the anomaly, which was only picked up by the court when considering judgment," the ruling stated.

The Supreme Court subsequently struck the matter off the roll without an order for costs.

"The entire proceedings ought to be set aside as a nullity," the court ruled.

The decision effectively brings the appeal proceedings to an end while leaving the substantive issues relating to custody and the finalisation of the divorce unresolved, meaning the parties may still have to return to court to determine the future care arrangements for their child.