Eltamatore v Enock Johannes Matore

The plaintiff and defendant married on 21 February 2003 under the Marriages Act [Chapter 5:11] and had two minor children. In 2007, the couple migrated to South Africa due to economic difficulties in Zimbabwe, but faced similar financial challenges there. The parties had ongoing financial differences, with the plaintiff alleging that the defendant prioritized his extended family (mother, siblings, and cousins) over their immediate family, and that the mother-in-law controlled the couple's finances and daily life, including receiving the plaintiff's salary. The plaintiff was unhappy with this interference and the defendant's hot temper. The parties had been separated since 2010 (approximately 3 years at time of trial), with the defendant not even knowing the plaintiff's residential address in Kwekwe where she was working. The plaintiff instituted divorce proceedings on 3 May 2013. The parties agreed at pre-trial conference on custody, access, maintenance, and division of assets, with only one issue referred to trial: whether the marriage had irretrievably broken down.

• Whether the marriage between the parties had irretrievably broken down such that there was no reasonable prospect for restoration of a normal marriage relationship
• Whether a court can order parties to remain married when one party insists the marriage has ended and all love and affection is lost
• The relevance of fault principle versus objective assessment of irretrievable breakdown in divorce proceedings

A decree of divorce was granted. The defendant was awarded custody of the two minor children (Marcell Tanaka Matore born 30 June 2003 and Shanice Kudzai Matore born 11 November 2008). The plaintiff was granted reasonable access during alternate school and public holidays and weekends by agreement. The plaintiff was ordered to provide the minor children with clothes and school uniforms. Each party was to retain the immovable property, household furniture and appliances in their respective possession. Each party was to bear its own costs.

Under s 5(1) of the Matrimonial Causes Act [Chapter 5:15], a court may grant a decree of divorce on grounds of irretrievable breakdown if satisfied that the marriage relationship has broken down to such an extent that there is no reasonable prospect for restoration of a normal marriage relationship. Where a plaintiff testifies on oath that they have lost all love and affection for the defendant and insists that the marriage has irretrievably broken down, this constitutes evidence that there is no reasonable prospect for restoration of a normal marriage relationship. Marriage is an anomalous contract of a personal nature requiring the consent of both parties, and a court cannot order parties to remain married or force one party to continue loving the other when that party is determined to end the marriage. The irretrievable breakdown is assessed objectively by the court, not based on fault, and where one party insists on ending the marriage, it is impossible for the court to find a reasonable prospect for reconciliation.

The court made observations about the defendant's conduct, noting he appeared to have a hidden agenda in seeking to frustrate the plaintiff by holding onto a non-existent marriage. The court criticized the defendant's selective reliance on biblical principles, noting he chose verses supporting his position (that marriage vows are broken only by death) while ignoring biblical principles of love being patient, kind, and not cruel or selfish, and the principle of mutual affection between husband and wife. The court observed that the defendant's conduct of disregarding his immediate family's needs and hurting his wife's feelings was contrary to the biblical commandments he relied upon. The court noted that self-imposition under cover of biblical desire does not amount to marriage as envisaged by law, as the contract must be between two consenting parties. The court also observed that the relationship between husband and wife requires symbolic obligation to obligation with give and take, and without this the covenant of marriage is breached.

This case reinforces the principle in Zimbabwean matrimonial law that irretrievable breakdown of marriage is assessed objectively by the court rather than based on fault. It confirms that where one party testifies on oath that they have lost all love and affection and insist the marriage has ended, the court cannot force continuation of the marriage contract regardless of the other party's wishes. The case emphasizes the sui generis nature of marriage as a contract requiring continuing consent of both parties, and that insistence by one party of loss of love and affection constitutes evidence that there is no reasonable prospect for restoration of a normal marriage relationship under s 5(1) of the Matrimonial Causes Act.