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IN THE HIGH COURT OF ZAMBIA 2017/HP/D0057
AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA
(Family Jurisdiction)
COURT OF
BETWEEN: PRINCIPAL
SIMATAA SIMATAA 29 SEP 2017 PETITIONER
REGISTRY
AND
5006!,
NAMTENDA JANET NSOFWA SIMATAA RESPONDENT
BEFORE HON MRS JUSTICE S. KAUNDA NEWA THIS 29th DAY OF
SEPTEMBER, 2017
For the Petitioner : Ms Chisha Mwambazi, Central Chambers
For the Respondent : Mr L. Mudenda, Kalokoni and Company
JUDGMENT
CASES REFERRED TO:
1. Hopes V Hopes 19482 ALL ER 920
2. Rushton V Rushton 19682 D.L.R 25
3. BVB1977ZR 159
LEGISLATION REFERRED TO:
1. The Matrimonial Causes Act No 20 of 2007
This amended petition for the dissolution of marriage was filed on 28th
July, 2017, pursuant to Section 8 and 9 (e) of the Matrimonial Causes
Act, No 20 of 2007.
The petition states that the Petitioner and the Respondent were lawfully
married on 7th November, 1992 at the Lusaka Civic Centre. That the
parties who are both domiciled in Zambia last lived as husband and wife
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at number 37 Cheiston Green in Lusaka. The petition further states that
there are four children of the family now living, and that there is a child
named Patricia Musonda Kachana Simataa aged thirty nine years who
was born to the Petitioner before the marriage.
That there are no proceedings in any court in Zambia or elsewhere with
regard to the marriage, and which are capable of affecting its validity or
substance. The petition also states that no arrangements have been
made for the maintenance of the children of the family. It is contended
that the marriage has broken down irretrievably as the parties have lived
apart for a continuous period of five years. The Petitioner prays that the
marriage be dissolved, and that there be no order for property settlement
or maintenance of the Petitioner.
The Respondent in the answer and cross petition admits that the
marriage has broken down irretrievably on the basis of the five year
separation, and prays that the said marriage be dissolved. She asks that
there be an order for property settlement and that she be granted
custody of the children of the family.
At the hearing both parties testified. The Petitioner in his testimony
repeated the contents of the petition, and produced the marriage
certificate as evidence that the marriage was solemnized. He also stated
that the child of the family Mary Rose is aged twenty three years, while
Simataa is aged twenty one years, and that the third child Mary Jane is
aged sixteen years, while the last child Linyama is aged six years. The
Petitioner told the court that Patricia who was born to him before the
marriage is thirty nine years.
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His evidence as regards the breakdown of the marriage was that they
have lived apart for more than five years, and that they have not shared
a bed or bedroom during that period, or lived as man and wife.
The Respondent in her testimony told the court that she consents to the
dissolution of the marriage and stands by that position. She told the
court that they separated in 2011 after the last child was born, when the
Petitioner moved out of the bedroom and started living in his own
bedroom.
I have considered the evidence. The petition was brought pursuant to
Section 8 and 9 (e) of the Matrimonial Causes Act No 20 of 2007. The
said Sections provide that;
"8. A petition for divorce may be presented to the Court by
either party to a marriage on the ground that the marriage
has broken down irretrievably.
9. (1) For purposes of section eight, the Court hearing a
petition for divorce shall not hold the marriage to have
broken down irretrievably unless the petitioner satisfies the
Court of one or more of the following facts.
(e) that the parties to the marriage have lived apart for
continuous period of at least five years immediately
preceding the presentation of the petition".
Going by the above provisions, the Petitioner in order to prove the
breakdown of the marriage, must establish that the parties have lived
apart for a continuous period of five years immediately preceding the
presentation of the petition. He stated that the parties have not shared a
bed or bedroom or lived as man and wife for the last five years. The
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evidence given by the Respondent was that the parties separated in 2011
after the last child was born. The exact date of the separation was not
stated to the court, and neither was the date when the last child was
born. However from 2011 to July 2017 when the amended was filed, is a
period of more than five years.
The evidence as given by both parties is that the Petitioner moved out of
the bedroom that he used to share with the Respondent, and began
sleeping in his own bedroom. They do however share a house as can be
deciphered from the evidence. In the case of HOPES V HOPES 1948 2
ALL ER 920 Denning LJ in considering what constituted desertion
stated that;
"One of the essential elements of desertion is the fact of
separation. Can that exist while the parties are living under
the same roof? My answer is "Yes." The husband who shuts
himself up in one or two rooms of his house and ceases to
have anything to do with his wife is living separately and
apart from her as effectively as if they were separated by the
outer door of a flat. They may meet on the stairs or in the
passageway, but so they might if they each had separate flats
in one building."
This dictum by Denning LJ was considered in the case of B V B 1977 ZR
159 when the court observed that "while the petition in Hopes was
based on desertion, the decision therein involving a review of the
authorities, is nonetheless relevant. The parties in that case slept
in separate bedrooms, intercourse ceased and they frequently
quarrelled: the wife did not wash or iron the husband's clothes; the
wife cooked for the husband who had his meals with her and the
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rest of the family; when not in his bedroom he shared the rest of
the house with his wife and daughters. On those facts the Court of
Appeal held that the parties were not living separately and apart".
The court went on to note that the dictum by Denning Li was approved
in the divorce division. In the case of RUSHTON V RUSHTON 1968 2
D.L.R 25 McIntyre J stated that;
"I am of the opinion that in the case at bar the parties have
been living separate and apart for three years within the
meaning of s. 4 (1) (e) (i) of our Divorce Act. The words
'separate and apart'... mean, in my view, that there must be a
withdrawal from the matrimonial obligation with the intent
of destroying the matrimonial consortium as well as physical
separation. The two conditions must be met. I hold that they
are met here. The mere fact that the parties are under one
roof does not mean that they are not living separate and
apart within the meaning of the Act. There can be, and I hold
that here there has been, a physical separation within the
one suite of rooms. To hold otherwise would be to deprive the
petitioner here of any remedy under the new Divorce Act
simply because she is precluded, or was for a period of time
precluded, by economic circumstances from acquiring a
different suite in which to live."
From the above cases, it can be seen that parties to a marriage may be
deemed to be living apart even if they reside in the same household as
long as they show that there is a withdrawal from the matrimonial
obligation with the intent of destroying the matrimonial consortium, as
well as physical separation. In this case it has been seen that the
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Petitioner left the matrimonial bedroom to sleep in one of the other
bedrooms in the house, and he told the court that since then, the parties
have not lived as husband and wife. The Respondent testified that the
Petitioner has been living in his own bedroom since the birth of the last
child.
Apart from the parties sleeping in separate bedrooms, no evidence was
led to show whether the Respondent does any household chores for the
Petitioner or that the parties do associate as husband and wife in other
ways. What the Respondent told the court was that she was consenting
to the marriage being dissolved as she does not have a change of heart.
While there was not enough evidence to show that the parties in this
matter separated with the intention to destroy the matrimonial
consortium, as what has only been established is that they do not sleep
together, it is clear that the two do not intend to resume the matrimonial
relationship. Seeing that they separated in 2011, the five year period of
separation immediately preceding the presentation of the petition has
been established.
The consent of the Respondent to the dissolution of the marriage is not a
requirement where five years separation is relied on as a fact to prove the
breakdown of the marriage. It is only a requirement where two years
separation is relied on as a fact, as provided in Section 9 (d) of the Act.
The only ground of opposition to the dissolution of a marriage based on
five years separation is grave or other hardship, as provided in Section
18 (1) of the Act. It states that;
"18. (1) The respondent to a petition for divorce in which the
petitioner alleges five years separation may oppose the grant
of a decree on the ground that the dissolution of the marriage
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will result in grave financial or other hardship to the
respondent and that it would in all the circumstances be
wrong to dissolve the marriage".
No such allegation has been made in this matter, and as it has been
established that the parties have been on separation for a period of five
years immediately preceding the presentation of the petition, I find that
the Petitioner has proved his case, and I accordingly grant a decree nisi
for the dissolution of the said marriage, which shall become absolute
after a period of six weeks. The parties are at liberty to agree on the
custody of the children of the family, and in default thereof either party
may make the application to me at chambers. Issues of property
settlement and maintenance are referred to the Learned Registrar for
determination. Each party shall bear their own costs.
DATED THE 29th DAY OF SEPTEMBER, 2017
S. KAUNDA NEWA
HIGH COURT JUDGE
