Report by Tafadzwa Mungwadzi
In coliseum of the practice of family law, many Zimbabweans and non-Zimbabweans in the diaspora have approached me for advise on how to reverse the gains of the famous phrase “I promise to love you till death do us part“. There is no running away from the fact that one need twice the effort to look for an ex Japanese Honda Fit in Harare, as they would to find a friend, brother, sister, aunt or uncle who has gone through or is going through a divorce. In all these interactions with the diasporans, the biggest question I have been asked is “CAN ONE INSTITUTE A DIVORCE IN A FOREIGN LAND?”. Perhaps before I answer this question, let me take time to explain the different types of marriage regimes.
Marriage in Community of Property
Although not always the default marriage, there is no doubt this is the most common marriage regime. With this marriage regime, both spouse’s assets and liabilities (even those acquired before the marriage) are merged into a joint estate, in which each spouse has an undivided half-share. In simple terms “chako ndechangu, changu ndechako”. The rules guiding how the assets will be distributed at the dissolution of the marriage is certainly a topic for another day.
Marriage Out of Community of Property without Accrual
With this type marriage, property owned by a person prior to the marriage, as well as all property accumulated during the marriage, belongs only to that person. To enable this notion, the parties sign an ante-nuptial contract (‘ANC’) before the marriage. The ANC will stipulate that either party’s assets or liabilities before and during the marriage remain such party’s. Put simply, there is no sharing in the material profit and loss of the marriage. Its “changu ndechangu, chako ndechako”. At the time of dissolution of the marriage, the court will only give due consideration to the contents of the ANC and nothing else.
Marriage Out Of Community of Property with Accrual
Although fundamentally different, this marriage regime is often confused with the marriage without accrual. In some cases, many people have made the error of taking marriage without accrual when they in fact intended to take marriage with accrual or vice versa.. In this marriage regime, each spouse retains control over his or her separate estate during the course of the marriage but can share equally in the growth of each other’s estate during the marriage. Simply put, the accrual system aims to ensure that both spouses in a marriage gain a fair share of the estate once the marriage comes to an end. The term ‘accrual’ means the net increase in value of a spouse’s estate since the date of marriage. As with marriage without accrual, the parties sign an ante-nuptial contract (‘ANC’) which include a specific recording of the assets of either of the parties before the marriage. This recording is commissioned before a Notary Public. It is only these assets that are excluded from the common marital estate.
DIVORCING FROM THE DIASPORA
It is common cause that foreign nationals and in particular Zimbabweans have settled in many countries worldwide. In my travels, I have met Zimbabweans in unknown countries such as Tuvalu and many others. Some of these foreign nationals who would have married in their home countries decide to divorce in the countries they have taken up residence. Against this backdrop, it is possible to institute divorce proceedings in a country in which the parties instituting the divorce are resident. Put bluntly, if X and Y got married in Zimbabwe and have a Zimbabwean marriage certificate but now live in England, it is possible for X and Y to institute divorce proceedings in England. One then would ask, what will happen if the country of residence has laws or/and a legal system that is different from that of their home country?. For one, what will happen if the laws of England are different from that of Zimbabwe. This gap is closed by the legal principle called the ‘conflict of laws.’ This principle seeks to remedy the discrepancy between laws and legal systems of different countries. In other words, where there is a conflict of laws of different countries, the court hearing the proceedings will decide whether a judgment should be made according to the laws of one country, state or another.
DIVORCE PROCEDURE
Although different countries have different legal procedures, the general process is that a spouse who wants to get a divorce starts the procedure by serving a summons on the other spouse. This is usually initiated through the court Sheriff. Once summons have been issued, the other spouse can either agree to the divorce or defend the divorce. If the other spouse agrees to the divorce, a divorce settlement agreement will then be validated by the court in the form of a divorce decree/order. If the other party disagrees with the divorce, a notice of intention to defend is filed after which the other party will have a specified timeframe to serve and file a response, which is otherwise known as a plea. A date will then be set where the judge will hear the matter and give a judgment. It is advisable to onboard a lawyer who will be able to assist a spouse with serving and filing of summons, defending a divorce as well as advise you on matters such as division of the property, care, contact and maintenance in respect of the children and spousal maintenance where necessary.
After all is said and done, one would need to understand that the consequences of a marriage are determined by what happens before the marriage and not what happens during the divorce process, as many may think.
Gratias Tibi
Tafadzwa Mungwadzi is a diaspora based Zimbabwean lawyer who writes in his personal capacity. He can be contacted at info@tafmunglegalservices.africa, Tel +27 79 630 3884
