Andrew Domingu v Alice Phiri Domingu (2021 /HPF / D 173) [2022] ZMHC 97 (28 March 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY 2021 /HPF / D 1 73 HOLDEN AT LUSAKA (Divorce Jurisdiction) BETWEEN: ANDREW DOMINGO AND I PUBLIC Ot L. I r · -=--- H COURT OF ' 1li81J-. J r.. Mll V & CH:1 ~P. , S cout~T 011/IS!ON ~ r. ... .,... ~~ 2 8 MAR 2022 ~..:. ~ ~ R~y,I . J "-+- ~ P. O. aox roo;:· L!fSt,, ~JT l TIONER ttettns ........ .,.... .... ..........,q ALICE PHIRI DOMINGO RESPONDENT Before the Honourable Mr. Justice W. S. Mweemba at Lusaka. For the Petitioner: Ms. Kapambwe M. Chileshe - Advocate, Messrs Legal Aid Board For the Respondent: No Appearance. JUDGMENT LEGISLATION REFERRED TO: 1 . The Matrimonial Causes Act, No. 20 of 2007 of the Laws of Zambia. 2. The High Court (Amendment) Rules 2020, Chapter 27 of the Laws of Zambia. 3 . The Matrimonial Causes Rules of England of 1973. 4 . Family Proceedings Rules 1991 of England. CASES REFERRED TO: 1. Pounds V. Pounds (1994) 1 F. L. R. 775 Andrew Domingu (th e Petitioner) filed this Petition for Dissolution of Marriage on 8th April, 2021 seeking to dissolve his marriage to Alice Phiri Domingu (th e Respondent). The Petition was brought pursuant to Section 8 and Section 9(1)(e) of the Matrimonial Causes Act, 2007. The Petition reveals that the Petitioner was married to the Respondent on 25th October, 2010 at Global Reformation Centre, Lusaka in the Lusaka Province of the Republic of Zambia; that both parties are domiciled in Zambia; that immediately after the marriage the Petitioner and the Respondent lived together as husband and wife in Livingstone, Southern Province, in the Republic of Zambia; that this was their last place of residence as husband and wife; the Petitioner is a Theatre Nurse at Livingstone Teaching Hospital in Livingstone and resides in Livingstone while the Respondent is a Psycho-Social Counselor at the Cancer Diseases Hospital at the University Teaching Hospital, Lusaka and resides in Kabwata, Lusaka. The Petition shows that there is one ( 1) child of the family Kate Domingu (Female) aged 10 years, who is in Grade 4 at St Patrick's School, Lusaka. The Petition further reveals that there have been no previous proceedings in any Court of Law in Zambia or elsewhere with reference to the marriage or the child of the family or between the Petitioner and the Respondent with reference to any property of either or both of them. That there are no proceedings continuing in any Country outside of Zambia in respect of the Marriage or which are capable of affecting its validity or subsistence. No agreement has been formalized between the parties for the support of the Petitioner or otherwise relative to the proceedings. The Petitioner alleges the irretrievable breakdown of the marriage on the ground that the Petitioner and the Respondent have lived apart for a continuous period of at least five (5) years immediately preceding the presentation of the Petition. That the parties last lived together in April, 2013 and there is no hope of the parties resuming cohabitation. That the Respondent consents to a Decree Nisi being granted. The Petitioner prays that his marriage to the Respondent be dissolved, that th e Court grants oth er relief it deems fit and that each party shall bear their own legal costs. The Respondent filed Acknowledgment of Service on 15th April, 2021 in which she stated that she did not intend to defend the case and that she did not intend to oppose the grant of the Decree Nisi a lleging Five (5) Years' Separation on the ground that the divorce will result in grave financial or other hardship to her. I find that the Petition er has sufficiently proved the contents of h is Petition and is e n titled to a Decree Nisi particularly that the Respondent is not contesting the divorce. I will deal with the Petition in the way that Petitions in the Special Procedure List are dealt with. The Sp ecial Procedure was introduced in 1973 in England and Wales for undefended divorces based on the fact of two years' separation plus consent, a lthou gh only where the couple did not have children. This procedure allowed a divorce to be granted on th e basis of Affidavit evidence alone. In 1977 it was extended to a ll undefended divorces, and the "Sp ecia l Procedure" became the norm-see the Family Proceedings Rules 1991 (Statutory Instrument 1991/1247) Rule 2. 36. The Procedure was summarized by Waite L. J in the case of POUNDS V POUNDS (1). Whilst the English Family Proceedings Rules 1991 do not apply to Zambia, I am of t h e firm view that undefended divorces based on the fact of five years' separation plus consent should be dealt with using the Specia l Procedure i.e on the basis of Affidavit evidence a lone without the need for the parties to attend Court for their case to be heard. I am of the considered view th at the Court is empowered to determine such a J3 divorce on the documents before it pursuant to Order 30 Rule 6A of the High Court Rules, Chapter 27 of the Laws of Zambia as amended by the High Court (Amendment) Rules 2020. Rule 6 A of Order 30 provides as follows: "6A. (1) Where the Court is satisfied that the application can be disposed of on the basis of the documents before it, the Court may determine the matter without the attendance of the parties or their advocates and shall issue a notice of the date of delivery. (2) This Rule shall apply to - (a) An interlocutory application; (b) An application under 1 l(a); (c) An application for determination on questions of law or construction of documents; or (d) Any other application as may be directed by the Court." I am satisfied that the Petition in this case can be disposed of on the basis of the documents on the Record without the attendance of the parties or their Advocates. I have considered the evidence of the Petitioner and noted that the Respondent has stated that she is not opposing the Petition or the grant of Decree Nisi and has therefore given her consent to a Decree Nisi being granted. I am satisfied that the marriage which was lawfully celebrated under the Marriage Act, Chapter 50 of the Laws of Zambia on 25t h October, 2010 at Global Reformation Centre, Lusaka has broken down irretrievably on account of the fact that the parties have lived apart for a continuous period of at least five (5) years immediately preceding the presentation of the Petition pursuant to Sections 8 and 9 (l)(e) of the Matrimonial Causes Act, 2007. J4 I am further satisfied that the Respondent consents to the Decree Nisi being granted and that granting a Decree Nisi will not cause grave financial or other hardship to the Respondent. I accordingly Decree that the Said marriage be dissolved and a Decree Nisi is hereby pronounced dissolving the marriage and I make the followings orders: 1. The Decree Nisi shall become Absolute Six (6) weeks from the date hereof unless cause be shown why the same cannot be made Absolute . 2 . Should the need arise the issues of custody of the child of the family; maintenance of the either party, the child of the family or both and property settlement are referred to mediation pursuant to Order 31 Rule 4 of the High Court Rules, Chapter 27 of the Laws of Zambia. 3 . Each party is to bear their own costs of this action. No appeal lies against a consented to Decree Nisi. DELIVERED AT LUS THIS 28TH DAY OF MARCH, 2022. 15