Murisa v Murisa

The parties married on 2 August 2003 before a Minister of Religion at Abundance Global Ministries in Harare. They had one minor child, Shallom Murisa, born 28 April 2005. Problems in the marriage began in December 2008 and came to a head in January 2009. In mid-January 2009, after the defendant suffered a miscarriage and was admitted to hospital, the plaintiff went to Mutare with friends instead of supporting her. When the defendant was discharged from hospital, she found that the plaintiff had moved out of the matrimonial home with their minor child. Relatives on both sides attempted reconciliation to no avail. The parties have not lived together as husband and wife since January 2009, a period of over two years before trial. The plaintiff stated he had lost all love and affection for the defendant and had no desire to reconcile. The defendant testified that she had vowed to love the plaintiff until death and still loved him, refusing to consent to the divorce despite the evidence of breakdown.

• Whether the marriage had irretrievably broken down under section 5 of the Matrimonial Causes Act [Cap 5:13]
• Whether the court should exercise its discretion to grant a decree of divorce in circumstances where the defendant opposed the divorce
• The application of the no-fault divorce principle based on irretrievable breakdown

1. A decree of divorce was granted. 2. Custody of the minor child Shallom Murisa (born 28 April 2005) was awarded to the defendant. 3. The plaintiff was granted reasonable access to the minor child on alternate weekends and alternate school holidays. 4. The plaintiff was ordered to pay the full school account for the minor child including school fees, uniforms, groceries and pocket money until she attains the age of 18 or becomes self-sufficient whichever occurs sooner. 5. Each party to bear their own costs.

Under section 5 of the Matrimonial Causes Act [Cap 5:13], a court may grant a decree of divorce where it is satisfied that a marriage has irretrievably broken down, meaning it has reached such a state of disintegration that there is no reasonable prospect of restoration of a normal marriage relationship. Where parties have not lived together for a continuous period of at least 12 months before the commencement of divorce proceedings (section 5(2)(a)), this constitutes prima facie evidence of irretrievable breakdown. The principle of irretrievable breakdown introduced by the Act is a no-fault principle where the cause or fault for the breakdown is immaterial. The defendant's refusal to consent to divorce based on religious or moral grounds does not prevent the court from exercising its discretion to grant a decree where the objective evidence establishes irretrievable breakdown.

The court made observations about the historical development of divorce law in Zimbabwe, noting that prior to the Matrimonial Causes Act coming into operation on 17 February 1986, divorce was granted on the basis of fault and a plaintiff had to prove well-established grounds showing the defendant had wronged them. The court also commented on the reality of modern life and the HIV/AIDS pandemic in the context of assessing whether reconciliation after two years of separate living would be reasonable. The opening reference to marriage vows "till death do us part" and the court's observation that the defendant had clung to these vows throughout the trial reflects the tension between religious/moral conceptions of marriage and the legal framework for divorce. The court's frequent need to restore order during heated exchanges between the parties was noted as evidence of the acrimony between them.

This case illustrates the application of the no-fault divorce principle under the Matrimonial Causes Act in Zimbabwean law, particularly where one party opposes the divorce. It demonstrates that the court's discretion to grant divorce is based on objective assessment of irretrievable breakdown rather than the consent of both parties or proof of fault. The case clarifies that religious or moral objections to divorce do not prevent the court from granting a decree where the statutory requirements are met. It also reinforces that the 12-month continuous separation provision in section 5(2)(a) of the Act is a key indicator of irretrievable breakdown, and that additional evidence of the state of the relationship (such as lack of communication, absence of love and affection, and acrimony) supports a finding of irretrievable breakdown.