Emmanuel Nkatia Chirumba v Chirumba (SCZ Appeal 164 of 2000) [2001] ZMSC 128 (12 April 2001)

SCZ APPEAL NO. 164/2000 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: EMMANUEL NKATIA CHIRUMBA Appellant and BEATRICE BWALYA CHIRUMBA Respondent CORAM: Sakala, Ag. DCJ, Chirwa and Lewanika, JJs on 8th February 2001 and 12th April 2001 For the Appellant: In person For the Respondent: In person JUDGMENT Chirwa, J. S. delivered the judgment of the Court: - On 8th February 2001 when we heard this appeal, we allowed the appeal and we indicated that we would give the reasons later. This we now do. This appeal arises from the undefended divorce petition presented in the Court below by the appellant. Both the appellant and the respondent attended Court at the High Court, just as they did before us. The petitioner told the Court below that the marriage had broken down irretrievably, the parties having lived apart for 10 years from 11th May 1990. The petition was filed in Court in August 1999. The learned trial judge dismissed the appeal after seeing both parties whom he described as “a lovely couple”. The learned trial Judge held that : J3 : Coming to our present case, there is nowhere that the wife, the respondent, has indicated that she consents to the decree of divorce. What is on record is the acknowledgement of service form where under paragraph 4 in answer to the question: Do you intent to defend the case? She states, "No". That is not consent as explained in the case cited. The first ground of appeal cannot therefore stand and it is dismissed. The second ground of appeal is that the learned trial judge misdirected himself in law and fact by overlooking the period of separation of over 5 years of the two parties not living together under one roof. The appellant refers to section 6 of the Divorce Reform Act, 1996 which provides that the marriage can irretrievably break down if parties have been living apart for 5 years or more. We note from the record that the petitioner specifically refereed the learned trial judge to paragraphs 10, 11 and 12 of his petition in which he states that the respondent left the matrimonial home in August 1990 and he allowed her to move out and that they have lived separately since 11th May 1990 to date of the petition, namely 18th August 1999 and therefore the marriage had broken down irretrievably. The learned trial judge's response to this was: - “When spouses five apart by their own consent such a separation by consent, is not a fact which can be pleaded in a petition for dissolution of marriage. I heard the petitioner in the presence of his wife. The petitioner was cool and almost casual, in Zambia you cannot terminate a marriage simply because you both agree to do so; you have to show that the marriage has in fact broken down irretrievably. That is not the case here. ” This is a serious misdirection. The jurisdiction of the High Court in divorce and matrimonial cases and matters is as provided in Section 11 of the High Court Act, Cap. 27. In England now there is only one ground of divorce, namely “irretrievably broken down of the marriage”. There are many factors that can cause the marriage to break down irretrievably and living apart continuously for five years is one of these factors and it has been since Matrimonial Cases Act : J2 : “When spouses live apart by their own consent such a separation, by consent, is not a fact which can be pleaded in a petition for dissolution of the marriage. I heard the petitioner in the presence of his wife. The petitioner was cool and almost casual. In Zambia, you cannot terminate a marriage simply because you both agree to do so; you have to show that the marriage has broken down irretrievably. That is not the case here.” In arguing the appeal the appellant advanced two grounds of appeal. The first was that the learned trial judge erred in law and fact that he failed to take into account that the parties have lived apart for more than two years and that with consent the marriage can be dissolved. This ground cannot stand. There is no evidence of consent by the respondent. The fact that the respondent does not wish to defend the petition is not evidence of consent; there has to be actual consent filed in Court. We would refer to the case of McG (formerly R) v R [19721 1 All. E. R. 362 where Sir George Baker P Said at page 363; - “ ‘Consent’ is a positive requirement, it may be contrasted with what / cannot help knowing was originally in the Bill, i.e. the words ‘does not object to a decree being granted’ “ Also at page 364; - “Counsel for the wife who has argued this matter with vigour and ability suggests to me that it will suffice that the petition states that the husband consents to a decree being granted. ......... Ido not think that is enough ........................ Suffice to say that in the present case I am unable to spell out or imply a consent by the husband, ft is said that a tetter of Iff' March 1971 from his solicitors amounts to a consent. It reads: - ‘[The husband] is not the least concerned with the procedural problems that have arisen. [The husband] simply wants this affair to be brought to finality as soon as possible. ’ That, says counsel for the wife, is consent. I agree that it may be an indication that the husband does not object to the wife having the alternative relief prayed for in the petition and being granted a decree of divorce, but, although I have the greatest sympathy for the wife and would help in any way I can, I am unable to find that there or anywhere else is a consent by the husband.” : J4 : 1973. In Zambia therefore a marriage can irretrievably break down by living apart for 5 years and there is no need for consent from the respondent. The appellant/petitioner in the present case did prove that the marriage had broken down irretrievably as the parties had lived apart for 5 years. It is for these reasons that we allowed the appeal and we granted the divorce decree. No order as to costs. E. LTSakala ACTING DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE