Nosisi Chimbwero (nee Moya) v Zacharia Chimbwero

The plaintiff and defendant were married on 19 August 2002 under the Marriages Act in Harare, having previously lived together under customary law since 1995. They had two minor children: Yolanda (born 27 November 1995) and Marcia (born 26 May 2001). The marriage broke down and the parties separated in August 2008. The plaintiff instituted divorce proceedings on 24 February 2011, alleging that the defendant was violent and cruel, engaged in extramarital relationships, that they had been separated since 2008, and that she had lost all love and affection for him. The defendant denied the allegations and initially contested custody, but later conceded custody to the plaintiff. At the pre-trial conference, parties agreed on maintenance and division of household property, leaving only two issues for trial: whether the marriage had irretrievably broken down and custody of the children. The custody issue was subsequently resolved by agreement.

• Whether the marriage relationship between the plaintiff and defendant had irretrievably broken down to such an extent that there was no reasonable prospect of restoration of a normal marriage relationship
• Which parent should be awarded custody of the two minor children (subsequently resolved by agreement)

1. A decree of divorce was granted. 2. Custody of the two minor children was awarded to the plaintiff. 3. The defendant was granted reasonable rights of access during school holidays (except the first week), important family gatherings, and at least one weekend per month during school term. 4. Maintenance was regulated in terms of the existing maintenance order in case number M1975/01. 5. The defendant was awarded all movable property except the fridge, which was awarded to the plaintiff. 6. The plaintiff was ordered to buy and give to the defendant a television set, VCR, and satellite dish which she had sold. 7. Each party to bear their own costs.

In determining whether a marriage has irretrievably broken down, the court must apply an objective test assessing: (1) whether the marriage relationship is no longer normal, and (2) whether there is any reasonable prospect of restoration of a normal marriage relationship. Where one party insists on ending the marriage and has lost all love and affection for the other, and the parties have been living separately without normal marital relations for an extended period with no genuine efforts at reconciliation, the court will find irretrievable breakdown despite the other party's professed desire to remain married. It is hardly possible for a court to find reasonable prospects of reconciliation when one party is determined to bring the marriage to an end.

The court noted that to satisfy the court that a marriage still has some life in it, one would have to adduce evidence that after the filing of the summons, the parties have reconciled and are living after the manner of husband and wife. The court also observed that the defendant's suspicions that the plaintiff was seeking divorce to marry someone else or because she was pregnant by another man were mere suspicions without any factual basis.

This case is significant as it demonstrates the objective approach taken by Zimbabwean courts in assessing whether a marriage has irretrievably broken down under the Matrimonial Causes Act. It reinforces the principle that a court cannot compel parties to remain married when one party is determined to end the marriage and normal marriage relations have ceased. The case illustrates the application of the two-pronged test: (1) that the marriage relationship is no longer normal, and (2) that there is no reasonable prospect of restoration. It confirms that one party's desire to reconcile cannot save a marriage when the other party is resolute in ending it and the objective circumstances demonstrate irretrievable breakdown.