Reward Kangai v Josephine Rhoda Kangai

The parties were married on 5 March 1983 under the Marriage Act [Chapter 37]. The union produced three children, all of whom were majors by the time of trial, though the youngest was still in high school. The marriage had been troubled since 1992, when the plaintiff first sought legal advice about divorce but decided against it. The parties had lived in separate rooms under the same roof for about two years before the plaintiff moved out of the matrimonial home. By the time of trial, they had been living under different roofs for more than nine months and had not been intimate since February 2005. The parties had already agreed on custody of minor children and division of matrimonial assets at a pre-trial conference. The plaintiff claimed the marriage had irretrievably broken down due to lack of communication and that he no longer loved the defendant. The defendant believed the marriage could be saved through counseling and maintained her Christian belief that marriage is until death.

• Whether the marriage between the parties had irretrievably broken down to such an extent that a normal relationship could not be restored
• Whether the plaintiff was obliged to pay maintenance for the defendant and if so in what amount
• Whether the plaintiff was obliged to maintain one of the vehicles (Mazda 626) awarded to the defendant

1. Decree of divorce granted to plaintiff. 2. Plaintiff awarded property at 10 Dan Judson Avenue, Milton Park. 3. Defendant awarded property at No 3 Thames Road, Vainona, with transfer costs paid by plaintiff. 4. Defendant retained all household goods at the Vainona property. 5. Defendant retained Mazda 626 and Nissan Sunny motor vehicles. 6. Plaintiff retained Mercedes Benz motor vehicle. 7. Plaintiff retained farm in Chivhu allocated under land redistribution program. 8. Plaintiff to pay maintenance of $500,000 per month for 12 months from 1 July 2007, with proportionate increases. 9. Plaintiff to maintain and service Mazda 626 for 12 months from 1 July 2007. 10. Plaintiff to retain defendant and daughter Wadzanayi on medical aid scheme. 11. No order as to costs.

A decree of divorce may be granted under section 5(1) of the Matrimonial Causes Act where the marriage has broken down irretrievably such that there are no reasonable prospects of reconciliation, based on an assessment of the parties' personal circumstances, duration of marriage, ages, and other relevant considerations. Courts are not obliged to order counseling where one party no longer has any love or affection for the other and the breakdown is evident from prolonged separation and lack of intimacy. Middle-aged divorced women with qualifications and employment prospects are entitled to temporary maintenance for a reasonable period to allow them to obtain employment and become self-supporting, rather than permanent maintenance which is reserved for elderly women who cannot be retrained or remarried.

The court observed that it sits as a court of law and not as a religious court, even where parties express religious beliefs about the sanctity of marriage. The court noted it is not practicable to send a party for counseling to be taught how to love another person. Gowora J also commented that bank statements produced on the morning of testimony in the manner described had little if any probative value in determining a party's true income.

This case provides guidance on the application of section 5(1) of the Matrimonial Causes Act [Chapter 5:13] regarding irretrievable breakdown of marriage in Zimbabwean family law. It clarifies that courts determine divorce matters based on legal principles rather than religious beliefs of parties. The judgment also provides important guidance on post-divorce maintenance for middle-aged divorced women, applying and illustrating the principles established in Chiomba v Chiomba (1992 (2) ZLR 197), particularly regarding temporary maintenance to allow qualified women time to re-enter employment rather than permanent maintenance.