Cletus Nyatsambo v Chiedza Nyatsambo

The plaintiff and defendant were married in terms of the Marriage Act [Chapter 5:11] on 13 August 1997. Two children were born of the marriage, one in 1996 before the solemnization. The plaintiff sued for divorce alleging irretrievable breakdown of the marriage. The parties had not lived together as husband and wife since March 2003. The defendant entered appearance to defend and filed a counterclaim, agreeing that the marriage had broken down but seeking maintenance for herself in addition to child maintenance. The parties agreed on most issues through a joint pre-trial conference held on 7 April 2014. The defendant's primary concern was securing guaranteed accommodation at 36 Mungongoma Road, Mufakose (the Nyatsambo family home) where she was residing, due to her health problems which she attributed to the plaintiff. The plaintiff, who was living in the United Kingdom, undertook through his elder brother to ensure the defendant would be accommodated at that property or provided alternative accommodation at his cost.

• Whether the marriage between the parties had irretrievably broken down
• Whether the plaintiff acquired property in the United Kingdom and Zimbabwe which must be distributed
• What terms should be granted regarding maintenance for the defendant and minor children
• What arrangements should be made for the defendant's accommodation post-divorce

1. A decree of divorce was granted. 2. The plaintiff shall pay 200 British pounds per month as maintenance for the defendant until she remarries or dies. 3. The plaintiff must ensure the defendant is provided with accommodation at 36 Mungongoma Road, Mufakose. 4. If the defendant is to be removed, the plaintiff shall provide alternative accommodation at his cost until she dies or remarries. 5. The defendant was awarded custody of the minor children (one child had become an adult). 6. The plaintiff shall have access to the children when he is in Zimbabwe. 7. The plaintiff shall pay 50 British pounds per child per month through the defendant for the minor child until the child attains 18 years or becomes self-supporting. 8. The plaintiff shall pay the minor children's school fees. 9. The defendant was awarded all matrimonial movable property in her possession in Zimbabwe. 10. Each party to bear their own costs of suit.

Where parties to a divorce suit have agreed through pleadings and pre-trial conference on the irretrievable breakdown of the marriage and the ancillary relief to be granted, including maintenance and property distribution, the court may grant a decree of divorce incorporating those agreed terms and any additional undertakings necessary to address legitimate concerns of the parties, such as security of accommodation. The court has discretion to facilitate settlement and incorporate reasonable undertakings into the divorce order to ensure practical justice between the parties.

The court observed that where a decree of divorce is granted, a marriage certificate cannot be retained as a valid document because the marriage has been dissolved. This was stated in response to the defendant's initial wish to retain her marriage certificate while allowing the plaintiff to proceed with a new wife. Chitakunye J also noted that the pleadings and discovery schedule did not disclose any property dispute beyond what had already been offered to the defendant, questioning why certain issues regarding property distribution in the UK and Zimbabwe had been referred for trial when there was no genuine dispute disclosed on the pleadings.

This case illustrates the Zimbabwean courts' approach to uncontested divorce proceedings where parties have substantially agreed on terms through pre-trial conferences. It demonstrates the court's willingness to facilitate settlement and incorporate undertakings regarding accommodation into divorce orders, particularly where one party has health concerns and requires security of tenure. The case also shows the practical application of maintenance obligations extending beyond child support to include spousal maintenance in circumstances where the parties are resident in different countries (Zimbabwe and United Kingdom) with maintenance denominated in foreign currency.