Emmie Mweemba v Abel Chandiona Mkandawire (2021/HPF/D317) [2022] ZMHC 98 (28 March 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) 2021/HPF/D317 -..cPusuc-~ ZAM8j;' 7 ,GH COURT OF Z.i ~B:A ~ AMILY & CHILDRcN'S ccur-n DIVISION j ~ 2 8 MAR 2022 -~~I REG!STRY P. O. eox 500_!~~ •~A . PETITIONER BETWEEN: EMMIE MWEEMBA AND ABEL CHANDIONA MKANDAWIRE RESPONDENT Before the Honourable Mr. Justice W. S. Mweemba at Lusaka. For the Petitioner: Ms. C. Jere - Advocate, National Legal Aid Clinic for Women. For the Respondent: Mr. A. C. Mkandawire (In Person) 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 Emmie Mweemba (the Petitioner) filed this Petition for Dissolution of Marriage on 1st July, 2021 seeking to dissolve her marriage to Abel Chandiona (th e Respondent). The Petition was b r ought pursuant to Section 8 and Section 9(l)(d) of the Matrimonial Causes Act, 2007. The Petition reveals that the Petitioner was married to the Respondent on 5 th August, 2005 at Office of the Registrar of Marriages at Lusaka Civic Center, in the City and Province of Lusaka in the Republic of Zambia; that both parties are domiciled in Zambia; that immediately after the marriage the Petitioner and the Respondent lived together as wife and husband off Lusaka Road, Mongu in the Western Province of Zambia; that the parties last lived together as husband and wife in Ngwerere , Lusaka aforesaid; that the Petitioner is currently a Student at Natural Resources Development College in Lusaka while the Respondent is an Accountant under the Ministry of Health also in Lusaka. The Petition shows that there are three (3) children of the family born to the parties namely: (i) (ii) Gomezgani Mkandawire (Male), born on 10th April, 2006. Lubuno Mkandawire (Female) born on 15th march, 2010. (iii) Abel Mweemba Mkandawire (Male) born on 12th July, 2015. That there is no child now living born to the Respondent in so far as is known to the Petitioner prior or during the subsistence of the marriage. The Petition further reveals that there have been no previous proceedings in any Court of Law in Zambia or elsewhere with reference to the property of the parties or of either party. That there are no proceedings continuing in any Court outside Zambia in respect to the marriage or which are capable of affecting its validity and subsistence. There is no formal agreement that has been made between the Petitioner and the Respondent in relation to the maintenance of the children of the family and maintenance of either p arty to these proceedings. The Petition alleges the irretrievable breakdown of the marriage on the ground that the Petitioner and the Respondent have lived separately or apart for a continuous period of at least two (2) years immediately preceding the presentation of the Petition. That the parties last lived together on 20 th March, 2018 and there is no hope of the parties reconciling and resuming cohabitation. That the Respondent consents to a Decree Nisi being granted. The Petitioner prays that her marriage to the Respondent be dissolved and that each party bears their own costs. The Respondent filed Consent to Divorce on 1st July, 2021. He confirmed that he has lived apart from the Petitioner for a continuous period of two (2) years immediately preceding the presentation of the Petition and he consented to a Decree Nisi being granted. I find that the Petitioner has sufficiently proved the contents of her Petition and is entitled 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 Special Procedure was introduced in 1973 in England and Wales for undefended divorces based on the fact of two years' separation plus consent, although only where the couple did not have children. This procedure allowed a divorce to be granted on the basis of Affidavit evidence alone. In 1977 it was extended to all undefended divorces, and the "Special 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 the firm view that undefended divorces based on the fact of two years' separation plus consent should be dealt with using the Special Procedure i.e on the basis of Affidavit evidence alone without the need for the parties to attend Court for their case to be heard. I am of the considered view that the Court is empowered to determine such a 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 given his 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 5 th August, 2005 ]4 at Office of the Registrar of Marriages at Lusaka Civic Center has broken down irretrievably on account of the fact that the parties have lived apart for a ~ontinuous period of at least two (2) years immediately preceding the presentation of the Petition pursuant to Sections 8 and 9 (l)(d) of the Matrimonial Causes Act, 2007. I am further satisfied that the Respondent consents to the Decree Nisi being granted. I therefore hereby invoke the provisions of Section 41 of Matrimonial Causes Act, 2007 and grant the Decree Nisi and I make the following 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 children of the family; maintenance of either party, children 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 LUSAKA THIS 28TH DAY OF MARCH, 2022. REPUBLIC OF ZA H:CH COURT MSI " ]5