Constantino Guveya Dominic Nyikadzino Chiwenga v Mary Mubaiwa

The applicant (plaintiff in the main proceedings) and respondent (defendant) were married in terms of an unregistered customary law union. On 24 November 2019, the plaintiff terminated the customary union by giving the defendant a divorce token called "gupuro" in the form of a US$100 note. In her plea filed on 14 January 2020, the defendant denied that the customary marriage was terminated, stating she refused to accept the "gupuro" as it was in US currency which was no longer transactable in Zimbabwe. The defendant was unwell and unable to prosecute her defence, resulting in the matter being previously set down and postponed. The plaintiff filed a chamber application on 24 November 2021 seeking judgment on the termination of the customary union, asking the court to stand down ancillary issues (custody, maintenance, distribution of assets) for determination at trial once the defendant was able to prosecute her case.

• Whether the customary union between the parties had terminated
• Whether the court could grant a declaratory order on the termination of the customary union separately from ancillary issues
• Whether the defendant would suffer prejudice if the issue of termination was separated from ancillary issues of custody, maintenance and distribution of assets
• Whether the principles in section 7(1) of the Matrimonial Causes Act permit dealing with dissolution first and ancillary issues thereafter

1. The application is allowed with costs. 2. It is declared that, by the time proceedings in HC 9837/19 were instituted, the customary union between the parties had ceased to subsist. 3. The ancillary issues relating to custody, maintenance and the property rights of the parties are stood down for determination at trial, which shall be set down by the defendant as and when she is able to prosecute the matter.

The binding legal principles established are: (1) A court may declare a customary union terminated and deal with ancillary issues separately, particularly where the parties' pleadings demonstrate agreement (express or tacit) that the union has ended, even if they dispute the manner or cause of termination. (2) Section 7(1) of the Matrimonial Causes Act, which permits courts to deal with ancillary matters "at any time" after granting dissolution, does not inhibit a court from determining whether a marriage or union has ended before dealing with ancillary issues. (3) A party opposing separation of issues bears the onus of proving prejudice, and must demonstrate how their rights would be adversely affected. (4) Since fault is no longer part of the law of divorce in Zimbabwe, there is no necessary link between the determination of dissolution and the distribution of assets.

TAGU J made non-binding observations that adopting a course of dealing with dissolution separately from ancillary issues may be desirable in several situations: (a) where parties have agreed (expressly or tacitly) that the marriage or union has ended; (b) where illness of a party prevents a matter from being heard but there is no real issue on whether the union still subsists; and (c) where joinder of other parties might inevitably delay hearing and determination of contested issues. The court also observed that the rules of court permit granting an order as prayed for or as varied, and where poor drafting has not properly presented the underlying dispute in the draft order, the court can in its discretion amend the draft order, citing Chiswa v Maxess Marketing (Pvt) Ltd & Ors HH 116-20.

This case is significant in Zimbabwean family law as it establishes that courts have discretion to deal with the question of termination or dissolution of a customary union separately from ancillary issues such as custody, maintenance and distribution of assets. The judgment clarifies the application of section 7(1) of the Matrimonial Causes Act to customary law unions, confirming that ancillary matters can be determined "at any time" after dissolution. It also demonstrates the court's willingness to grant declaratory relief on uncontested matters even where a party formally opposes, if the party's own pleadings reveal acceptance of the fact in issue. The case further illustrates the court's power under the rules to grant orders as varied from what was prayed for, to correctly reflect the facts and evidence.