G v G

The plaintiff and defendant were married on 5 September 1998 in Harare and had two daughters born in 2001 and 2004. On 31 January 2007, the plaintiff issued summons for divorce on grounds of irretrievable breakdown of marriage, primarily alleging he had been denied conjugal rights by the defendant for over three years. The defendant defended the action, maintaining the marriage had not broken down irretrievably and that with proper counseling, they could resume normal married life. During pre-trial conferences, the parties agreed on custody of children (to the defendant with reasonable access rights), distribution of movable assets, and that immovable property (a vacant stand in Ruwa) would be registered in the children's names. The parties had sought counseling from a married couple and relatives, and the defendant had sought medical treatment, but their marital problems persisted. The parties separated in July 2007 when the plaintiff left the matrimonial home.

• Whether the marriage had broken down irretrievably to such an extent that there was no reasonable prospect of restoration of normal marriage relations under section 5 of the Matrimonial Causes Act
• Whether the court should exercise its discretion to grant a decree of divorce or postpone the matter to give the marriage another chance
• Whether the defendant was entitled to maintenance for herself
• The appropriate maintenance arrangements for the minor children

1. A decree of divorce was granted. 2. Custody of the two minor children awarded to the defendant with the plaintiff enjoying reasonable rights of access. 3. The plaintiff was awarded specific movable property (refrigerator, DVD player, satellite dish and decoder, two plate stove, bed and mattress, 21 inch LG television). 4. The defendant was awarded specific movable property (4 plate cooker, deep freezer, lounge suite, 21 inch Phillips television, radio cassette player, carpet). 5. Stand 27 Ruwa awarded in equal undivided shares to the two minor children. 6. Until the younger child attains majority, the immovable property to be registered in the defendant's name as trustee for the children, with authority to develop it for their benefit. 7. Each party to bear its own costs.

1. Under section 5 of the Matrimonial Causes Act, once one party to a marriage has expressed an intention to end the marriage and maintains that position at the time of hearing, absent evidence of changed mind, the court will be hard pressed to order parties to reconsider their positions because 'it takes two to tango'. 2. Defendants who argue their marriages have not broken down irretrievably have a duty to place before the court evidence tending to show there are prospects of reconciliation and that the plaintiff has been responding well to overtures of reconciliation; the court cannot act on mere belief of one party that the marriage will someday recover. 3. A divorced woman who is gainfully employed is not entitled to maintenance from her former husband as of right. 4. The concept of irretrievable breakdown represents a move away from the fault or matrimonial offence principle to an objective assessment of the state of the marriage by the court.

The court observed that courts will not grant divorces lightly, noting that divorces change one's status at law and socially, separate children from one parent save for regulated access periods, and generally impoverish divorcing couples by parceling out jointly held assets. The court commented that where there is evidence a marriage can be salvaged or where justice demands, the court will exercise discretion against granting divorce. The court also remarked on the difficulty in both policing and enforcing maintenance orders requiring contributions in kind or percentage-based contributions, expressing preference for leaving such arrangements to be addressed in maintenance courts if problems arise. The judgment included sympathetic observations about both parties, describing the plaintiff as articulate, honest and fair with palpable frustrations, and the defendant as equally articulate, earnest, valuing her marriage, affectionate towards the plaintiff, and a devout Christian who believes in the sanctity of marriage.

This case is significant in Zimbabwean family law jurisprudence for its interpretation and application of section 5 of the Matrimonial Causes Act concerning irretrievable breakdown of marriage. It clarifies the court's approach to the discretionary power to grant divorce, establishing that where one party maintains their intention to end the marriage and there is no evidence of genuine reconciliation prospects, the court should not force parties to remain married. The judgment also provides important guidance on maintenance obligations for divorced spouses, particularly that gainfully employed former wives are not entitled to maintenance as of right, and reinforces the principle that defendants opposing divorce must provide concrete evidence of reconciliation prospects rather than mere belief or hope. The case illustrates the court's practical approach to enforcement of maintenance orders and the limits of what courts will order in this regard.