Philip Dzenga v Primrose Dzenga (nee Phiri)

The plaintiff and defendant were married in Bulawayo on 11 December 2010 under the Marriages Act (Chapter 5:11). There were no children born of the marriage. During the marriage, the parties acquired both movable and immovable property including a vacant stand in Emganwini, two motor vehicles, household furniture and appliances. Following disagreements, the plaintiff issued summons claiming a decree of divorce and distribution of matrimonial assets. Plaintiff alleged the marriage had irretrievably broken down due to the defendant's improper associations with other men, verbal and psychological abuse, threats to kill him, labeling him as sterile, denial of conjugal rights, and cessation of cohabitation since May 2014. The plaintiff engaged marriage counselors from their church and community leaders to save the marriage, but these efforts failed. The defendant admitted the marriage had broken down but attributed it to the plaintiff's adultery and his current cohabitation with another woman. She contended that between 2014 and 2016, the plaintiff visited her and they had sexual intercourse, suggesting reconciliation. The defendant stated she still loved the plaintiff despite his alleged adultery and assaults that caused her to miscarry.

• Whether the marriage between the parties has irretrievably broken down within the meaning of section 5 of the Matrimonial Causes Act (Chapter 5:13)
• What constitutes an equitable distribution of the matrimonial property in accordance with section 7(4) of the Matrimonial Causes Act

1. A decree of divorce was granted. 2. The plaintiff retains: (a) half share in stand 491 Emganwini with right to buy out within three months, failing which it shall be sold and proceeds shared equally; (b) half share in Mazda Bongo registration number ACL 6472; (c) half share in Nissan Caravan registration number AAZ 7839; (d) wardrobe; (e) Kelvinator 4 plate stove; (f) Lenovo laptop. 3. The defendant retains: (a) half share in stand 491 Emganwini with right to buy out within three months, failing which it shall be sold and proceeds shared equally; (b) half share in Mazda Bongo registration number ACL 6472; (c) half share in Nissan Caravan registration number AAZ 7839; (d) Kelvinator double door fridge; (e) lounge suit; (f) 2 x sewing machines. 4. The motor vehicles to be sold to best advantage of the parties. 5. The immovable property to be valued by a registered estate agent agreed to by both parties or appointed by the Registrar. 6. Cost of evaluation to be shared equally. 7. Each party to bear its own costs of suit.

The irretrievable breakdown of a marriage is objectively assessed by the court. Where a plaintiff persists at trial that he or she is no longer desirous of continuing in the marriage relationship, the court cannot order the parties to remain married even if the defendant still holds affection for the plaintiff. To satisfy the court that the marriage still has life in it, the party opposing divorce must adduce evidence that after the filing of summons, the parties have reconciled and are living after the manner of husband and wife. Sporadic acts of sexual intercourse between estranged spouses, without evidence of full reconciliation and restoration of a normal marriage relationship, are insufficient to demonstrate that a marriage has not irretrievably broken down. If the court is satisfied on the evidence that the marriage can be restored, it will decline to grant the divorce; otherwise, where the plaintiff demonstrates loss of love and affection, unsuccessful reconciliation efforts, and persistent unwillingness to continue the relationship, the marriage will be found to have irretrievably broken down within the meaning of section 5 of the Matrimonial Causes Act.

The court observed that evidence of numerous fights between spouses and unsuccessful counseling sessions is indicative of a lifeless marriage. The court also noted that while section 5(2) of the Matrimonial Causes Act provides certain factors to which a court may have regard in deciding whether a marriage has irretrievably broken down, these factors are not exhaustive and the court may consider other relevant circumstances in making its determination.

This case is significant in Zimbabwean matrimonial law as it applies and reinforces the principle established in Kumirai v Kumirai regarding the objective assessment of irretrievable breakdown of marriage. It clarifies that sporadic sexual intercourse between estranged spouses, without more, is insufficient to demonstrate reconciliation or prospects of restoring a normal marriage relationship. The case demonstrates the court's approach to balancing the subjective desire of one party to end the marriage against the other party's wish to continue the relationship, establishing that the court cannot force parties to remain married where one party persistently demonstrates loss of affection and unwillingness to continue the marital relationship. It also illustrates the practical application of section 7(4) of the Matrimonial Causes Act in distributing matrimonial property equitably.