Mutombo v Mutombo 2009/HP/D.181

Facts

The petitioner was a lecturer at the University of Zambia and the Respondent a Primary School Teacher. They had three children. The petitioner complained that the respondent was highly insecure to the extent that she accused him of having extra-marital affairs with other women. To support this, the petitioner said that the respondent once accused him of having an affair with the respondent’s niece because he gave her some money. The petitioner also recalled an incident when the respondent stormed into his office, and confiscated some photographs that belonged to the petitioner’s colleagues. He found this to be embarrassing and demeaning. Furthermore, he said that the petitioner tends to be moody and withdraw into violent fits. The respondent’s evidence on the other hand, was to the effect that although the parties did not share the same bedroom, they still lived together and maintained a sexual relationship. It was also found as a matter of fact that the petitioner still supported the respondent and the children financially.

Issue

The main contention here is whether the marriage had irretrievably broken down to the extent that the petitioner could not reasonably be expected to live with the respondent, given these set of facts?

Held

It was held that a petition for the dissolution of marriage premised on behaviour must amount to more than a mere complaint. Furthermore, when it is alleged that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, the task of the Court is not only to look at the quality of the respondent’s behaviour, but also the effect of the conduct upon the petitioner. The court also defined irretrievable breakdown as meaning ‘a marriage which stands no chance of the parties resuming the cohabitation’. The cumulative effect of the behaviour of the respondent (which may be minor isolated incidents) should be taken as whole and analysed in light of whether or not it would be reasonable to call the petitioner to endure it. Applying the law to the facts, the court was of the view that the petitioner had filed trivial, or rather mere complaints that nearly all married people go through. Moreover, the conduct of the parties pending suit was inconsistent with those in which a marriage had irretrievably broken down: This was so because the parties enjoyed a sexual relationship, lived together and the petitioner maintained the respondent and the children financially. Hence the petition was dismissed.

Commentary

It is always a pleasure to read Matibini J’s Judgments. His style of writing is clearly academic and to say the very least, scientific and organized with a view to a conclusive end.

To reiterate some of the major points: I think that the main contention, here, is that the petitioner should not just bring a long list of trivial complaints to the court seeking a decree nisi. Secondly, on account of unreasonable behaviour under section 9 (1) (b) of the Matrimonial Causes Act, it is not enough to prove that the respondent’s behaviour was unreasonable but it is also necessary to prove that the petitioner cannot reasonably be expected to live with the respondent.

In other words, the effect of the Respondent’s behaviour on the Petitioner should, using the words of the court in Katz v Katz, expecting neither heroic virtue or selfless sacrifice, be of such a nature that the  reasonable man would not expect the petitioner to live with the respondent. The test to be applied is objective with subjective elements (Mahande v Mahande) and it is a question for the Judge not the parties to determine. [The Judge must do this as a finding of fact].

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Please feel free to comment below.

Vigilante scholar team

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