Chama v Chama (HP/D 108 of 2015) [2016] ZMHC 163 (21 September 2016)

IN THE HIGH COURT FOR ZAMBIA 2015/HP/D. IOS AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) BETWEEN: RUTH TEMBO CHAMA AND / PETITIONER HUMPHREY CHAMA RESPONDENT Before Honorable Mrs. Justice M. Mapani-Kawimbe on 21st September For the Petitioner For the Respondent Ms. B. Musukwa, National Legal Aid Clinic For Women No Appearance JUDGMENT LEGISLATION REFERRED TO: 1. The Matrimonial Causes Act, No. 20 oJ2007, sections 8 and 9 (1) (d) This is a Petition for dissolution of marriage filed on 29 April, 2016, by Ruth Tembo Chama, the Petitioner. The Petition is presented pursuant to Sections Sand 9 (1) (d) of the Matrimonial Causes Act No. 20 of 2007. J1 It is common cause that the Petitioner, Ruth Tembo Chama, and the Respondent, Humphrey Chama, then a spinster were lawfulIy married on 23,d December, 2010, before the Registrar of Marriages, in Kitwe. The Petitioner and the Respondent last lived as husband and wife at Changa Changa, Ndeke compound, Kitwe. The Petitioner is a teacher and resides at BP flats no 10, Chitanda Road, Lusaka, while the Respondent is a business man and resides in Kitwe, in Copperbelt Province. There is one child now living that has been born to the Petitioner and the Respondent during the subsistence of their marriage aged five years. There are four other children now living that have been born to the Respondent before the subsistence of the marriage so far as is known to the Petitioner. There are no other proceedings in any court in Zambia or elsewhere regarding the marriage or between the Petitioner and the Respondent regarding any property of either or both of them and there are no proceedings continuing in any court outside Zambia which are in respect of the marriage or are capable of affecting its validity or subsistence. lt is the Petitioner's testimony that the marnage has broken down irretrievably by reason of the fact that the parties have lived J2 separate and apart for a continuous period of at least two years immediately preceding the presentation of this Petition, from the 3,d day of September, 2013 to date. At the trial the Petitioner in her testimony confirmed the contents of the Petition. The Respondent did not appear although he did give his consent to the dissolution of marriage on 18'h April, 2016. I have considered the Petition filed in this matter. The only ground upon which a petition for divorce may be presented to the Court is provided in Section 8 of the Matrimonial Causes Act No. 20 of 2007 which provides that: itA petition for divorce may be presented to the Court by either party to the marriage on the ground that the marriage has broken down irretrievably", In order to prove that the marrIage has broken down irretrievably, the Petitioner should satisfy the court of one or more of the facts set out in Section 9 (1) (a) to (e) of the Act. Section 9 (I) (d) which is relevant to the petition under consideration provides as follows: "9. {lJ For the purposes of section eight, the Court hearing a petition fOT divorce shall not hold the marriage to have broken down irretrievably unless the Petitioner J3 satisfies the Court of one or more of the following facts: (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted;", This being an undefended petition, it is not necessary for me to give a lengthy judgment. Suffice it to say that on the facts stated in the petition and confirmed by the Petitioner in his oral testimony, I am satisfied that the marriage has broken down irretrievably as the Petitioner and the Respondent have lived separate and apart for a continuous period of at least two years immediately preceding the presentation of this petition from the 3,d day of September, 2013 to date and are not willing to reconcile. I am also satisfied that the Respondent does not oppose the granting of a decree nisi. I therefore dissolve the marnage between the Petitioner and the Respondent celebrated on 23,d December, 2010 as prayed by the Petitioner and accordingly grant a decree nisi. The decree mSI will be made absolute six weeks from the date of this judgment. J4 I will determine the question of the custody of the children of the family upon application by either party. The question of property settlement will be determined by the learned Deputy Registrar upon application by either party. Each party will bear their own costs. Dated this 21" day of September, 2016 . .................!ID0..rX'LrW. Hon. Mrs. Justice M. Mapani-Kawimbe HIGH COURT JUDGE . J5