Sylvia Mupombwa v Matirasa Katsvairo and Tawainga Arnold Katsvairo

The first and second respondents contracted a civil marriage on 25 December 1965 which still subsists. In 1979, the applicant and the second respondent entered into an unregistered customary law union. On 8 November 1989, they purported to register a customary law marriage under the African Marriages Act, with the second respondent falsely stating his marital status. This marriage was declared null and void by the court on 8 September 2020 in case HC 8946/19 at the instance of the first respondent. The first respondent then issued summons for divorce against the second respondent under case HC 4775/19. The applicant, who had been cohabiting with the second respondent for over 40 years and bore five children with him, applied to be joined as the second defendant in the divorce proceedings. She claimed she contributed to the acquisition of matrimonial assets during her 40-year union with the second respondent, believed in good faith she was validly married (putative marriage), and that her rights would be prejudiced if the assets were distributed only between the respondents without her being heard.

• Whether the applicant has a direct and substantial interest in the divorce proceedings between the respondents to justify joinder
• Whether a third party to a marriage can be joined in divorce proceedings for the purpose of claiming a share in matrimonial property
• Whether the applicant's rights arising from a putative marriage entitle her to claim a share in property to be distributed in the respondents' divorce action
• Whether joinder would prevent multiplicity of actions and serve the interests of justice

The application for joinder was granted with costs. The applicant, Sylvia Mupombwa, was joined as the 2nd defendant in Case No. HC 4775/19. The applicant was ordered to enter her appearance to defend and plea within 10 days of the judgment, after which the normal rules of procedure would apply.

A third party who has been in a putative marriage with one spouse in a divorce action has direct and substantial interest in the divorce proceedings and is entitled to be joined under Rule 87(2)(b) of the High Court Rules where: (1) the third party claims to have contributed to the acquisition of matrimonial property that is subject to distribution in the divorce proceedings; (2) the third party's rights to claim a share of that property under section 7(1)(a) of the Matrimonial Causes Act would be adversely affected by judgment in the divorce matter; and (3) joinder would prevent multiplicity of litigation and enable wholesale resolution of property distribution claims. Section 7(1)(a) of the Matrimonial Causes Act, which governs distribution of property upon divorce, judicial separation or nullity of marriage, applies to putative marriages that have been declared null and void, entitling the innocent party who laboured and contributed in good faith to claim a share of property acquired during the union.

The court observed that there has never been an exhaustive list of situations where joinder is firmly regarded as a right or outright prohibited, and the court has wide discretion to grant joinder in any case and at any stage as it thinks just. The court noted that what should guide the exercise of discretion under Rule 87(2)(b) are the facts specific to each case. The court commented that the rationale for joining third parties in divorce proceedings is no different from the rationale for joining third parties in any other matters - the person seeking to be joined must have interest in the thing (not in a person) which is of sufficient importance to persuade the court to exercise its discretion in ordering joinder in the interests of justice. The court noted that situations where parties fail to realize that civil 'church' marriages are monogamous are very common in African society. The court observed that whether the marriage was putative or bigamous does not matter for purposes of applying section 7(1)(a), as the provision is designed to prevent injustice to parties who laboured and contributed in good faith.

This case is significant in Zimbabwean matrimonial law as it establishes that third parties who have been in putative marriages (marriages entered into in good faith but legally invalid) can be joined in divorce proceedings between legally married spouses for the purpose of claiming their share in matrimonial property. The judgment affirms that section 7(1)(a) of the Matrimonial Causes Act applies to nullified marriages, including putative marriages, to prevent unjust enrichment and protect parties who contributed to property acquisition in good faith. It extends the joinder doctrine in civil procedure to matrimonial matters, recognizing that property rights of third parties can create direct and substantial interest justifying joinder in divorce proceedings. The case promotes judicial economy by allowing all claims to the same property to be determined in one proceeding, preventing multiplicity of actions. It also addresses the common situation in African society where parties fail to realize the monogamous nature of civil marriages and subsequently enter into invalid customary marriages.