Cross-border divorce: The legal process

The year was 1995. At that time, Sibonokhuhle Kambarami, (not her real name), was a 26-yearold vivacious single lady. She was employed as a receptionist at a large commercial entity in Harare. Early one morning while at work, Sibonokhuhle received a call from a certain Peter Goodman, again, not his actual name.

Peter said he was calling from San Francisco in California, United States of America. During the conversation, it emerged that Peter was on the wrong number, much to his frustration.

Feeling obliged to help him, Sibonokhuhle enquired from Peter the details of the organisation he had intended to contact. As there was no Internet in 1995, she looked up the correct number in the yellow pages of the telephone directory and gave it to him.

Impressed by the excellent help he had received from Sibonokhuhle, Peter told her that he was due to land in Zimbabwe on a business trip in a few weeks' time, and that he wished to contact her during his visit.

Sibonokhuhle readily agreed and looked forward to meeting him. True to his word, upon landing in Harare, Peter did not waste time. As soon as he was freed from his official business schedule, he telephoned Sibonokhuhle.

Before long, the two found themselves dinning at a plush restaurant in the city. After only a few months, the two had become one as they had appeared before a Marriage Officer in Harare and vowed to cling to each other in holy matrimony for life.

Again, it was not long before Sibonokhuhle had migrated to the US, now proudly rebranded, Mrs Sibonokhuhle Goodman. Although their marriage was at first blissful, due to natural wear and tear over time, it was afflicted by troubles.

As a result, Peter deserted their jointly owned matrimonial home leaving Sibonokhuhle stranded with the two minor children that had been born out of their marriage.

Convinced that Peter had all but broken his marriage vows, Sibonokhuhle decided to leave the US and promptly returned to Zimbabwe together with the children. She now wanted to trace the route to a court of law for a decree of divorce. But how was she to do it with Peter in his native US and herself, in Zimbabwe?

The above scenario raises legal questions centred on how a married couple that hails from and resides in different countries, and who wish to no longer remain in a relationship in which love, companionship, affection and all the other  privileges of a marriage are no longer being served, go about divorcing.

As such, this piece discusses the legal processes that lead to the dissolution of a marriage that was contracted in a particular country, while one or both of the spouses are outside that territory.

In addition, it shall also ventilate issues involving the custody, maintenance and guardianship of the minor children that would have been born out of such a marriage. Lastly, how is the property acquired by the parties before and during that matrimony to be apportioned between them, particularly if some of the property is in foreign lands?

In a typical divorce case, there is usually no debate regarding to the question whether or not a couple whose marriage is no longer working  must divorce.

Quarrels usually arise with respect to how the properties acquired before and during the marriage by the couple ought to be shared between them. Not many times does the divorcing pair fight over the custody of the minor children of the marriage as normally, custody is awarded to the mother unless the parties agree that it be granted to the father.

The court in its role as the upper guardian of all minor children when making its decision, will always be guided by what will be in the best interests of the children concerned.

Concerning maintenance, this is usually payable by the non-custodian parent with disagreements on the quantum. In such a scenario, the court will  impose what it considers to be the appropriate amount depending on the facts and or evidence that would have been placed before it vis-a-viz the needs of the children concerned. Now, turning to the dissolution of a registered marriage.

Apparently, every marriage will ultimately have to be terminated.

If divorce does not do it, then death will ensure it. It, therefore, follows that there is no happy ending to any marriage. This discussion is limited to the disbanding of a marriage by divorce in circumstances where both or one of the parties is outside the country in which the case is being dealt with. In a divorce case, the party that blinks first would have to initiate an action by issuing out a divorce summons out of the appropriate court.

That party is called the plaintiff. The other party will be the  defendant.

The divorce summons itself is handled differently from any other summons such as the one demanding the payment of a debt or other things.

The latter mentioned summons, although also served by the Sheriff of the High Court or the Messenger of Court depending, may be left in the hands of any responsible person at the defendant's address.

If the defendant keeps the premises locked to prevent or frustrate service, then the Sheriff or Messenger may affix it to the outer principal door or any other conspicuous place at that address. However, with regards to a divorce summons, it may not be placed in the hands of any third party or be affixed to the so called outer principal door. It has to be personally served on the defendant spouse.

The reason for this rule or approach is that a decree of divorce, when eventually granted, will have direct and almost always,  serious debilitating consequences on the status of the defendant.

Such a person will suddenly become a divorcee with possible further grim repercussions on the welfare of the minor children of the marriage as well as the parties' property rights. Accordingly, the court will only proceed to deal with the case after it is satisfied that the defendant was personally served with the summons.

All these issues are easy to deal with if the divorcing couple had married in Zimbabwe and were or are still in Zimbabwe at the time of the institution of the divorce proceedings.

But what is the position in a case such as our Sibonokhuhle faced? She was back in Zimbabwe, yet her spouse from whom she sought the divorce remained in the US and had no intention whatsoever of coming to Zimbabwe. Even if he had come, would that have been sufficient to empower the court to deal with their divorce case?

According to section 3(1) of the Matrimonial Causes Act (Chapter 5;13), "the Act", the jurisdiction or authority of the court to entertain an action for divorce is only possible if;

(a) 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 (b) 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 (c) 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 sum total of the said sections of the Act is that a wife who desires a divorce does not have a straight and direct route to the divorce court unless her husband is domiciled in Zimbabwe.

In other words, the divorce court gains its power to entertain a divorce case from the husband if he is domiciled in Zimbabwe.

A wife whose husband is domiciled outside Zimbabwe cannot be heard by the divorce court if she is the plaintiff unless she  alleges and proves that it has been at least two years since she was deserted by her husband, or that she is a citizen of Zimbabwe, and that for at least two years before instituting the divorce process, she has been ordinarily resident in Zimbabwe.

This state of our law obviously causes undue hardships to women who would have either been deserted by their husbands or who will be intending to get out of dead marriages and the concerned husbands would not be domiciled in Zimbabwe.

The position in South Africa is different. There, the divorce court derives its power to entertain a divorce matter from either spouse.

All that is  required is for either party to be resident or domiciled within the court's jurisdiction. Authority for this is at page 83 of the book, "The Civil Practice of the High Court of South Africa" by the respected authors, Herbstein and Van Winsen who wrote; "Jurisdiction in respect of divorce proceedings is now regulated by the Divorce Act, 1979, which provides that a court will have jurisdiction if either party to the marriage is resident or domiciled within the court's area of jurisdiction".

In a case where it is a Zimbabwean domiciled man who married a foreigner and who craves to divorce his wife in the Zimbabwean court, his road to court is clear. By the very fact that he will be suing her for the divorce within his own jurisdiction, it is enough for the court to attend to the matter and grant the decree of divorce before the sun sets on that day, so to speak.

But what exactly is meant by domicile in law as used in the context of a divorce case? The courts have characterised domicile to mean the particular place at which a person lawfully remains present for an indefinite period of time.

Admittedly, this definition is vague, at least in the writer's judgement. However, to separate the bones from the meat that make up that characterisation, domicile for divorce purposes is the country in which the husband was born and bred and which country he considers to be his permanent home.

By way of an illustration, if a Zimbabwean citizen, being a married man, works and resides in Botswana for a prolonged period of time, but does not consider that country as his permanent home, at least in his mind, then Zimbabwe remains his domicile. Domicile is not the same thing as residence.

Residence is simply that, residence, or where one stays which may not necessarily be his home. As such, it is possible for one to reside in one place and be domiciled elsewhere.

In Sibonokhuhle's case, she could not have arrived from the US and immediately filed for divorce in Zimbabwe as her husband Peter had neither abandoned the US as his domicile nor adopted Zimbabwe as his new domicile, the so called domicile of choice.

In terms of our laws, Sibonokhuhle would have to wait for at least two years before instituting the divorce action in Zimbabwe against her estranged husband. Otherwise the court would decline to entertain her case on the grounds that it did not have the power to do so based on the rule that unless the husband is domiciled in Zimbabwe, the  court has neither the authority nor the power to deal with the case.

Sibonokhuhle would have to first endure the two year waiting period if the court is to see her and hear her. Even if Peter were to consent to the Zimbabwean court dealing with the case, the court would still refuse to do so on the ground that Peter is not domiciled within the jurisdiction of the court. However, when eventually heard after the two year long wait, the court will likely dissolve the marriage. But before doing so, it would have to be satisfied that the divorce summons were properly served on Peter, wherever he may have been.

Since Sibonokhuhle had been deserted by her spouse and she did not know his address, the courts allow that an advertisement addressed to Peter carrying the fact of the divorce and published in a newspaper that circulates in the place in which she believed him to reside, would suffice as proof that he had notice of the impending divorce proceedings.

It is technically  called substituted service and may only be done on the strength of a court order issued by the Zimbabwean court to that effect.

As to the distribution of the properties acquired by the divorcing couple before and during the marriage, this is normally done according to the parties' agreement. If not, then it will be at the discretion of the court. In arriving at its decision, the court has wide powers.

It can take the property of either spouse and give it to the other whether or not such property was acquired before or during the marriage. Everything will of course, depend on the facts and evidence given to the court and also what is fair and just in the circumstances of that particular case.

In the event that the couple had married in Zimbabwe as is the case with Peter and Sibonokhuhle and they had assets back in the US, after the granting of the divorce, that divorce order would have to first be registered in the appropriate court in the country in which the assets are located, in the present case, California, USA. That way, it then becomes an order of that other court and is therefore enforceable in that country.

This means such a process is expensive as it entails that one has to travel to that other country to realise the benefits of that divorce order. If however Sibonokhuhle had, despite being deserted by her husband, remained in the US, she could have immediately filed for divorce in that country even though their marriage was celebrated in Zimbabwe.

As she would be the plaintiff, it follows that issues of the husband's domicile would not have arisen since he was being sued within his own domicile thereby giving the court the jurisdiction to hear the matter.

Any properties of the parties that were in Zimbabwe would be distributed between them in terms that  foreign court order but only after its registration with the appropriate court in Zimbabwe.

In a nutshell, these are the processes involved when a Zimbabwean woman marries a block from a foreign territory and who wishes to have the marriage liquidated in Zimbabwe or abroad.

As has already been said, when it comes to the right to approach a Zimbabwean court of law for divorce, our laws are very much tilted against Zimbabwean women as they do not enjoy direct access to the divorce court.

They can only do so if and only if, their husbands are domiciled in Zimbabwe. Zimbabwean wives who may wish to sue their foreign domiciled husbands for divorce are at a serious disadvantage as they have to wait for at least two years before beating the path to a court.

As such, it is contended that the South African approach is more ideal as it demands the same pound of flesh from whoever approaches the court for the divorce. It is accordingly prayed that this aspect of our laws be reformed to follow  the South African approach as it levels the playing field.

As things stand, when it comes to divorce, all are not equal before the law in so far as Zimbabwean men and women who are married to foreign spouses are concerned.

The views and opinions expressed in this article are solely the author's own. They do not constitute legal advice of any sort.