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Slyvia Chirawu
One of the most enduring myths relating to divorce is that a party who is sued for divorce can ‘refuse’ to be divorced and thus hold the other party to ransom. The Herald therefore ought to be applauded for covering the High Court case where the court granted a decree of divorce despite the fact that the other party was opposed to this. The peculiar thing about that particular case was that it was the husband who wanted to hold on to the marriage because more often than not, it is wives who do not want to divorce. Those opposed to divorce simply point out to the dangers and negative impact on children especially.

On the other hand, those who applauded the ruling state that it is fool hardy to hold on to a dead marriage; that this causes more harm than good because it leads to cases of bigamy and complications at death of the man in the middle and that there is life after divorce.

In previous articles in the Sunday Mail, I have covered the aspect of what at law is called irretrievable breakdown of marriage using the Matrimonial Causes Act. As long as the evidence before the court points to the fact that the marriage has broken down, a decree of divorce is granted.

The law also allows the courts to consider the facts of any divorce case and if the court believes that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection, the case can be postponed to enable the parties to attempt reconciliation. This has been done though in rare circumstances.

This should not in any way be viewed as an attempt to salvage a broken-down marriage but is guided by the evidence before the court. Perhaps the evidence points out to the fact that the divorce was filed in the heat of the moment; that the parties are both not sure whether they want to divorce and that they should be given time. If the reconciliation attempt does not work out, the case can be resumed with authority from the court and finalised. What is important to emphasise however is that courts will not force parties to stay together if a marriage has irretrievably broken down.

The reasons why one party to a marriage may ‘refuse’ to be divorced vary but in my respectful view, they stem from the contradictions in culture and tradition, religion and the law.

Culture; tradition and religion are bedfellows in emphasising that a marriage should be for keeps while on the other hand, the law views marriage as a contract which if breached there are remedies either in suing for adultery depending on the circumstances or getting a divorce. Indeed, adultery alone is a ground for divorce. In a typical courtship before lobola is paid, the woman and the man involved introduce each other to their respective relatives usually starting with their aunts.

This is in the spirit of getting support for the intended customary law union. Long back, the woman and the man would exchange clothing items before the woman’s aunt to symbolise the seriousness of the relationship. The lobola ceremony itself involves relatives from both sides with the woman’s relatives being in the majority by virtue of the fact that the man will be paying the lobola.

A go-between will initially represent the man and when the lobola is paid (it does not have to be in full) the man is then called into the house and introductions are done and other traditional requirements usually followed by eating and merry making. In other instances, the go-between will ask for a white wedding on behalf of the man if there is a future intention to have one.

The emphasis when lobola is paid is that marriage is something that should be taken seriously and there is no expectation that the union should be terminated. This is the reason why the ceremony involves relatives because it is also seen as a union of two families who henceforth become relatives under customary law. Such is the richness of the African culture which aims to create ties that bind.

As Africans we criss-cross easily between culture and religion. Most Chapter 5:11 for Zimbabweans are preceded by payment of lobola. In the religious realm, a chapter 5:11 marriage is viewed as a covenant. Usually the Bible verse which states that what is bound on earth is also bound in heaven is emphasised and that in the event of a divorce, the bride and groom should have another ceremony to announce this.

This is meant to reinforce the fact that this covenant should not be terminated at all expect by death. Even the vows also reinforce the fact that only death should terminate the marriage. At bridal showers, there is an emphasis on culture and religion as well.

The would-be bride is advised to love her husband’s relatives; to love and respect her husband; to fit into his family. If there are gatherings such as death, she must fit in. She is an ambassador: she represents her family, her mother and all womankind.

If she does something wrong at her husband’s family, she will bring disgrace not only to herself but her own family, her mother and all womankind. In other words, there is no room for divorce. Bible verses which emphasise submission are read. She is advised that her husband is the head of the family; she must cleave to her husband, honour and respect him.

She is told that marriage is not a walk in the park but she must also endure. If her husband leaves her for another woman or seeks a divorce, she may be to blame. The message that divorce is unacceptable is reinforced over and over again in both culture and tradition and also religion. Divorce is treated with stigma.

A divorced woman especially faces discrimination from the larger community including in the church. If she is seen talking to a Mr so and so she is labelled as a potential husband snatcher. No one cares about the reasons why she is a divorcee. Divorce is viewed as the ultimate symbol of failure.

“Akarambwa”, they say in Shona meaning that she was “rejected” despite the fact that she may even be the one who filed for divorce. Perhaps the divorcee is the couple advisor or youth adviser at the church. How will she be viewed by those she is supposed to advise?

Whilst those who encourage married couples to stick together no matter what have legitimate concerns, we do not unfortunately live in an ideal world. Even if a couple professes undying love before many, this does not shield their relationship from breaking down.

Marriages do fall apart for many reasons ranging from infidelity, fair wear and tear, incompatibility, alcohol and drug abuse, economic hardships and interference from relatives. Many couples are enduring marriages which have since long died.

Given the way many of us are socialised in culture and tradition and religion, it is not surprising that one of the defences put forward in divorce cases is that, “I still love my wife/husband, we can work this out through our Pastor/Priest/Reverend or other religious figure”.

There are many sad cases where the wife especially insists that the marriage is still intact and that she loves her husband despite the fact he has moved on with his life.

In most of the divorce cases that I have dealt with where one party insists that they still want to remain married, the reasons are that lobola was paid; that the divorce will bring stigma and shame; that “I am a Christian and the Bible says no divorce”.

Under customary law, the divorce has to involve the go-between and the family of the woman. The husband has to explain why he is divorcing his wife. This may start of through the giving of a rejection token, gupuro in Shona given to the wife personally or through the go-between. The in-laws must also be shown the gupuro.

In some instances, there are attempts to reconcile the couple. It is not as easy therefore under customary law to divorce. There are instances where the husband’s family may even tell their son that their daughter-in-law is not going anywhere and there are women who as a result still stay in the rural areas with the in-laws whilst the husband stays elsewhere with another family.

On the other hand, the law as stated above views marriage as a contract between two people. It is a Chapter as part of the statute law of Zimbabwe. There is no legal provision that states that it must be for life.

Although a party can sue a third party who has sexual intercourse with her or his spouse during the subsistence of the marriage for adultery, that in fact points to irretrievable breakdown.

A party who no longer wishes to remain in the marriage simply issues summons either in the High Court or Magistrate Court depending on whether they have a chapter 5:11 or 5:07 marriage.

Many parties who receive divorce summons find it hard to reconcile with the fact that they started off as boyfriend and girlfriend; lobola was paid, a white wedding was held, all emphasising that this was for good but the law is now telling them that what they viewed as a covenant is simply a contract, one that has broken down and one where the court must terminate and also decide on issues such as custody of children, maintenance and sharing of movable and immovable property.

A woman who has received summons for divorce may get all the support she can from her husband’s family but the question that the court will address guided by the Matrimonial Causes Act is: has the relationship between the parties broken down to such an extent that there no reasonable prospects for the restoration of a normal marriage between the parties? If yes, a decree of divorce is granted.

Slyvia Chirawu is a registered legal practitioner; gender, women and child rights expert. She teaches family law and the law of succession. She writes in her personal capacity.