Moffat Mungazi
Part 2
THE fact of the breakdown of a marriage irretrievably, is objectively assessed by the court.
Where the plaintiff insists that he or she is no longer desirous of continuing in the relationship, the court cannot order the parties to remain married even if the defendant still holds some affection for the plaintiff.
Evidence by the plaintiff that he or she no longer wishes to be bound by the marriage oath, having lost all love and affection for the defendant, has been accepted by the court as evidence of breakdown of the relationship since the promulgation of the Matrimonial Causes Act in 1985.
As discussed last week, there are only two grounds on which divorce can be granted: that the marriage has irretrievably broken down or incurable mental illness or continuous unconsciousness of one of the parties to the marriage.
One of the grounds for divorce is where the defendant has been sentenced by a competent court to imprisonment for a period of at least 15 years.
The Matrimonial Causes Act does not provide the rationale behind this period of time.
The Act does not say a spouse has to wait for the sentenced spouse to complete the 15-year sentence.
It looks like it is saying as soon as the spouse is sentenced for 15 years, the other spouse can go straight to the divorce court and file for divorce.
There does not appear to be any magic in the 15-year sentence, if divorce can be instituted any time from the date of sentencing.
Whether the defendant will be released earlier on parole or through amnesty before serving the sentence, has not been envisaged.
The other basis for divorce is when the spouse has in terms of the law relating to criminal procedure, been declared to be a habitual criminal or has been sentenced to extended imprisonment and has, in accordance with such declaration or sentence, been detained in prison for a continuous period of, or for interrupted periods which in the aggregate amount to, at least five years, within the 10 years immediately before the date of commencement of the divorce action.
This means if the spouse has been in and out of prison for periods which when put together amount to five years, within a period of ten years before the divorce proceedings commence, it is a ground of divorce.
If a spouse is a habitual criminal, the other spouse can file for divorce on that basis.
One of the grounds for divorce is when the defendant has, during the subsistence of the marriage, treated the plaintiff with such cruelty, mental or otherwise; which is not compatible with continuation of normal marriage.
Mental, physical and verbal abuse can find a basis for divorce. If the defendant habitually subjects himself or herself, as the case may be, to the influence of intoxicating liquor or drugs to such an extent that as is incompatible with the continuation of a normal marriage relationship.
A drunkard can be divorced for habitual intoxication.
A drug abuser who is habitually intoxicated can have a divorce filed against him or her.
It is on proof of any of the factors discussed above and in the article on the topic published last week, that one can show that the marriage has irretrievably broken down.
A court may grant a decree of divorce on the grounds of mental illness or continuous unconsciousness of the defendant if satisfied that the defendant is suffering from a mental disease or defect and has been under care and treatment for a continuous period of, or for interrupted periods which in the aggregate amount to, at least five years, within the 10 years immediately before the date of commencement of the divorce action.
This means the illness must not be less than five years in order to provide a basis for divorce.
A court may also grant divorce where the defendant is by reason of a physical disorder, in a state of continuous unconsciousness which has lasted for a period of at least six months immediately before the date of commencement of the divorce action; and that there is no reasonable prospect that he will be cured or will regain consciousness, as the case may be.
Unconsciousness for a period of six months gives rise to a basis for divorce.
Very few cases, if any have come up for divorce on the basis of mental illness or unconsciousness.
Most cases are on the basis of loss of love and affection, adultery and cruelty.
Parties normally get divorce where they can prove that to show irretrievable breakdown of marriage.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
