Clever Makwarimba v Engeline Makwarimba (nee Muchero)

The parties were married on 24 March 2000 and had six children together, two of whom were still minors at the time of the proceedings (Nyasha Makwarimba born 15 January 2000 and Paul Clever Makwarimba born 11 August 1997). The plaintiff moved out of the matrimonial home in July 2013. A pre-trial conference was held where all ancillary issues were agreed upon, including initially the issue of divorce, and these agreements were captured in a draft consent paper. However, the defendant subsequently refused to sign the divorce settlement, stating she did not want to divorce and wished to keep the marriage intact in accordance with their marriage vows. The plaintiff testified that the marriage had irretrievably broken down, that he no longer loved the defendant, and that his life had become miserable because of the marriage. The defendant confirmed they no longer lived together as husband and wife but maintained hope that the plaintiff would one day return home. She had no issues with the ancillary relief but opposed the divorce itself.

• Whether a decree of divorce should be granted on the grounds of irretrievable breakdown of marriage when one party opposes the divorce but the other party has definitively ended the relationship
• What constitutes sufficient evidence of irretrievable breakdown of marriage
• Whether a court can refuse a divorce when one party is determined to bring the marriage to an end
• How to deal with ancillary relief in contested divorce proceedings where parties have reached agreement on property and maintenance issues

1) A decree of divorce was granted. 2) Custody of the two minor children awarded to the defendant with plaintiff having access rights on alternate weekends and alternate school holidays. 3) Plaintiff ordered to pay maintenance of $120 per month per child plus all school fees and ancillary schooling costs until majority or self-supporting. 4) Plaintiff awarded an Isuzu vehicle (registration ACG 7245) and a Gold Orange trailer (registration ABU 1166). 5) Defendant awarded Stand number 2466 Cowdray Park (with plaintiff ordered to remove all encumbrances and clear outstanding debts), the Toyota Spacio motor vehicle, and all household goods except items awarded to plaintiff. 6) Plaintiff ordered to clear all debts owed in respect of Bienon Trading Pvt Ltd and all debts pertaining to children's school fees. 7) Each party to bear their own costs.

When one party to a marriage is determined to bring the marriage to an end and has demonstrated through conduct (such as prolonged separation) and testimony that they no longer wish to remain married, it is hardly possible for a court to find reasonable prospect of reconciliation, and a decree of divorce on grounds of irretrievable breakdown should be granted. Evidence that a party is no longer desirous of remaining married is adequate for the court to grant a decree of divorce. A court cannot practically order an unwilling party to return to a matrimonial home and participate in a marriage when that party has lost all love and affection for their spouse, as marriage is a two-way consensual relationship and courts have no power to rekindle affection between parties.

The court observed that the defendant was "clearly fighting a lost cause" and noted that the plaintiff "voluntarily entered into this union with no court orders, neither can denying him the divorce force him to participate in a union he is now disinterested in." The court also made the philosophical observation that "Marriage is a two way relationship and when one party no longer wants it, there is not much that even a court can do." These comments underscore the court's recognition of the limitations of judicial intervention in compelling emotional commitment within marriage relationships.

This case reinforces the principle in Zimbabwean family law that divorce cannot be denied when one party has definitively demonstrated that the marriage has irretrievably broken down, even when the other party opposes the divorce on religious or personal grounds. It affirms that marriage is a consensual union that requires mutual commitment, and courts cannot compel unwilling parties to remain married. The judgment emphasizes the practical impossibility of forcing reconciliation and recognizes that love and affection are essential ingredients for a viable marriage. The case also demonstrates the court's willingness to adopt agreed-upon ancillary settlements even in contested divorce proceedings, promoting efficiency and respecting party autonomy on financial and custody matters.