Tully v Tully (1965) Z.R. 165 (H.C.)

Facts

The petitioner prayed that his marriage to his wife be dissolved on the ground of desertion. Although Ramsay J was satisfied that the wife had been in desertion in the timeframe satisfied by statute, it was established that the petitioner was domiciled in England. Now before Independence, the High Court of Northern Rhodesia had jurisdiction to make decrees for the dissolution of marriages which included British citizens who were domiciled in any part of England. Then came in the Zambia Independence Act, 1964; Section 7 (2) of the Act granted all the courts in Zambia jurisdiction on and after that day as they would have had if the Act had not been passed. This of course was subject to Section 7 (1) of the Act. (read the full case for more info on that).

Issue

The main issue here was whether or not the court could entertain the petition given the fact that the respondent was domiciled in England.

Held

The only exemptions to the provisions of Section 7(2) of the Zambia Independence Act [mentioned in the facts above] were i.) the provisions of Section 7(1), which precluded the courts from having jurisdiction in dissolving marriages of this nature on or after the day of independence [worthy of note however, is that the courts had jurisdiction over such proceedings instituted before that day] (ii.) the other exemption was to be found in the provisions of section 7(2) itself that this [meaning the provisions of section 7(2) mentioned above] was subject to any provision to the contrary made on or after the appointed day made by any legislature in Zambia. The court held that the first exception i.e. section 7(1) had two implications: Firstly, it terminated the jurisdiction of the Northern Rhodesia and Zambia courts in proceedings of such nature commenced on or after the date of independence. Secondly, it gave the Northern Rhodesia and Zambia courts the jurisdiction to hear matters of such nature which were commenced before Independence. As this matter was commenced after the said date, it meant that the courts had no jurisdiction to grant the relief sought.

Commentary

This is one of those case summaries were it would be difficult to understand without reading the full case. It would be best for the Vigilante Scholar in this case to read the full case and particularly focus on Counsel Kent’s submission (the petitioner’s counsel). The courts rebuttal of that submission, I believe holds the ratio decidendi of this case (but of course, this is subject to appraisals from my learned colleagues in the public).Worthy of note also is the fact that the court applied the reasoning behind a Kenyan case to come to its decision.

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Wendy Partridge v Joseph Partridge (1985) Z.R. 223 (H.C.) HIGH COURT

Facts

The facts of the case were that the petitioner had gone through a marriage of convenience with the respondent. This was so because she wanted a citizenship in Zimbabwe because she couldn’t get the said citizenship (i.e. it was difficult for her) through the normal way. The marriage between the petitioner and the respondent ( a Zimbabwean Citizen) was never consummated because, as the parties to the marriage put it, it was a marriage of convenience. As time went on, the respondent wished to marry someone else and the petitioner herself gave oral evidence that she had a boyfriend in Zambia and wished to have the marriage set aside so that she could be free.

Issue

Whether a decree of nullity could be granted on the ground of failure to consummate given these set of facts?

Held

In its holding, the court used the case of Sheldon v Sheldon as authority. In that case, both parties to the marriage made no attempt at consummation and had no sexual affection for each another. Sakala J, as he was then,  quoted Karminski J as saying, “The burden of satisfying the Court that either the husband or wife was incapable of consummating the marriage was wholly on the wife. She had failed to discharge this burden. It was clear that the question of capacity had never been put to the test…” Basing on authorities, it was held that wilful refusal must not be by the petitioner but by the respondent’s incapacity to consummate (unknown by the petitioner at the time of marriage). Since no reason was given for failure to consummate apart from obtaining Zimbabwean citizenship, it was held that it would be against justice, public policy and morality to permit the petitioner to plead her own failure to consummate the marriage as a ground for a decree of nullity given the fact that she was aware that the marriage by their arrangement was not to be consummated. This therefore meant that the capacity to consummate the marriage was not put to test. Hence the petition was dismissed.

Commentary

For fear of deviating into the mechanics of biology, I deliberately avoided defining the word ‘consummation’. Perhaps Dr Lushington wise words in the case of D-E v The AG would be of help.

This case is quite strange I might add. Not only were the arguments raised by the petitioner ‘weak’ but also her petition went undefended. Clearly, the intentions of the parties were obvious and it was easy for Sakala J to see through them. Nonetheless, it stands as another testament to the greed of men, and also as an attempt to relegate the sanctity of marriage to selfish-ambition (see also Chilima v Chilima).

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SOMANJE v SOMANJE (1972) Z.R. 301 (H.C.)

Facts

The petitioner got married to the respondent when she was sixteen. Their marriage was arranged and evidence was adduced to the effect that she did not know the respondent before the marriage. On numerous occasions, the respondent took to drink and accused the petitioner of infidelity (including one occasion were respondent accused the petitioner of sleeping with her boss at work, causing her to lose employment). The respondent also attempted to commit suicide on numerous occasions often citing the petitioner’s infidelity as a reason. The petitioner’s mother testified to the court that indeed their marriage was an unhappy. Furthermore, the petitioner also claimed that the respondent did not maintain her and the children. 

Issue

The main issue to be determined by the court was whether the court could dissolve the marriage based on these set of facts?

Held

On the question of maintenance, the court made a finding of fact that supported the respondent’s evidence that he maintained the petitioner and the children. Furthermore, it was also found that while the children were in the matrimonial home, the respondent maintained them from his wages as did the petitioner. It was also established that both the petitioner and respondent bought items for the house and that during the marriage they did both contribute to the household expenses. The court also made a finding to the effect that the arranged marriage was an unhappy one from the start. The real reason as to why the petitioner wanted to end the marriage was because she grew tired of living with her husband and did not love him (not necessarily his conduct or accusations).  Even after the last occasion complained of, she still lived with the respondent for a couple of months or so (which, legally-speaking, meant the marriage hadn’t broken down irretrievably). Since unhappiness in a marriage cannot be a ground for dissolution, the petition was dismissed.

Comment

Towards the tail-end of the judgment the court also addressed its mind towards an issue raised by counsel that the marriage was customary and hence non-justiciable to the court. In response to this, the court took the view that there was no customary marriage before a priest and witnesses (as the facts of this case disclosed). Since the parties were married by the priest in the presence of witnesses, the marriage was held to be valid under common law.

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HOWARD AND COMPANY (AFRICA) LTD v BEHRENS (1972) Z.R. 171 (H.C.)

Facts

The plaintiff’s wife was injured due to a collision with the defendant at a junction. The plaintiff sued the defendant for damages occasioned by loss of consortium and also money spent by the plaintiff on his wife. He brought this action basing his argument on the negligence of the defendant. Now section 3 (a) of the Law Reform (Limitation of Actions) Act provided a time-bar of three years to any causes of action in damages for negligence, nuisance or breach of duty. Furthermore, according to the Act, the aforementioned causes of action were to be brought in respect of personal injuries suffered. Mr. White (the plaintiff’s counsel) submitted that the defendant owed a duty of care and was in breach of that duty to both the wife and the plaintiff (for loss of consortium).

Issue

Whether the defendant owed a duty of care in negligence to the plaintiff in loss of consortium

Held

 The court held that loss of consortium is a distinct and separate tort in its own right. The implication of this, therefore, is that it has no dependence on the tort of negligence. In the same vein, the tort of negligence requires a duty of care owed and also breach of that duty among other things. In this case, Silungwe J agreed with the defendant counsel’s reasoning that the duty of care in this circumstance was owed to all road users in general and not to the plaintiff husband. It is therefore true that a husband’s right of action for loss of consortium is separate and distinct from his wife’s action arising out of any tortious act done to her by another person. Loss of consortium, as a tort in its own right, can be brought about by, for example, trespass to the person of his wife, such as assault or false imprisonment. Hence, the appeal was dismissed.

Commentary

In this case there was a preliminary issue on a point of law on whether or not the plaintiff’s right of action was time-barred in correspondence to section 3 (a) of the Law Reform (Limitation of Actions) Act.  Silungwe J took the view that the plaintiff husband’s loss of his wife’s consortium was not an action ‘for damages for negligence, nuisance or breach of duty’ as envisaged in the Act and thus was not time-barred.

Another factor worth mentioning is that even if a duty of care under negligence was extended to the plaintiff husband, it had to be shown that the same was brought in respect to personal injuries (which wasn’t the case here. See also Venter v Venter & Joubert on consortial loss.

(This case is tabbed under Family Law although I should admit that it has strong Tort Law overtones).

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ANNE SUSAN DEWAR v PETER ALEXANDER DEWAR (1971) Z.R. 38 (H.C.)

Facts

The petitioner and respondent were of Scottish origin and married in Scotland. The petitioner prayed for a dissolution of the marriage brought under section 2 (1) (b) of the Divorce Reform Act, 1969. The requirements of this section read together with section 2 (3) were firstly, irretrievable breakdown of the marriage and secondly, the existence of the facts listed as (a) to (e) in section 2(1) [read commentary below for more information]. She also prayed for custody of the two minor children of the marriage, and maintenance for herself and the children. The respondent realized his saleable assets, took John Bruce (one of the children) from his wife’s reach and removed his name from her passport (this action precipitated into legal proceedings).

Issue

Whether a decree nisi could be granted on the ground of irretrievable breakdown evidenced on the premise that the petitioner cannot reasonably be expected to live with the respondent. Moreover, it also had to be determined which of the two parents got custody of the children.

Held

Given the history and background of the marriage, the court made a finding of fact that the marriage had reached a point of complete antagonism and lack of trust. In answering the question as to whether the marriage had broken down irretrievably and that the petitioner could not reasonably be expected to live with the respondent, the court applied the objective test. This was, of course, in consideration and taking into account the characters and personalities of the parties; and the whole background and history of the marriage must be considered. On that basis, the court found that the petitioner could not be expected to live with the respondent in consideration of his last action (complained of). Furthermore, custody of the children was granted to the mother citing that she had elements of maturity and stability.

Commentary

General Observations: CUSTODY— (i.) In this case, Baron J made mention that he did not regard adultery as a ground for depriving the child of the advantages of being in the mother’s care. (ii.) Even though John Bruce was ‘attached to his father’ while only ‘fond of his mother’, the court still came to the conclusion that the mother was more suitable. (iii.)  Baron J confirmed the Juvenile Inspector’s recommendation that the children should not be separated [because there is an obvious benefit of the two children growing up together]

GROUNDS FOR DIVORCE— A definition of ‘cruelty’ was defined from Lord Pearce in Gollins v Gollins as “whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it.”  In this regard Baron J made mention that for the provisions of s. 2 (1) (b) to be met the conduct need not be as serious as would have amounted to cruelty under the pre-1971 law.

Unfortunately, I have been unable to avail myself of this ‘pre-1971 law’. Perhaps someone in the General Public will be more successful. If that is the case, please email me at yaimanbande@gmail.com so that we could amend this case where necessary. I can only deduce that the provisions of section 2 (1) (b) of the Divorce Reform Act, 1969 and those factors listed from (a) to (e) are similar to our section 9 (1) (a) to (e) of the Matrimonial Causes Act No.20 of 2007.

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MULUNDIKA v MULUNDIKA (1991) S.J. (H.C.)

Facts

The petitioner in this case sought a decree nisi in dissolution of the marriage based on the grounds that the respondent was quarrelsome, petty and infatuated by jealousy. He also claimed that the respondent hated guests and was rude to his brother (a man by the name of Sanford). He also told the court that the respondent was prone to excessive drinking and never prepared food for the petitioner’s relatives when they visited. Evidence was also adduced to the effect that the petitioner himself had extra-marital affairs with two other women and three children were born out of these affairs. The respondent claimed that she only turned to excessive drinking in order to cope with the depression she endured because of these affairs.

Issue

Using the Judge’s words the main issue was encapsulated as follows: “…bearing in mind the Petitioner’s faults and other attributes, good and bad, and having regard to his behaviour of extra marital affairs during the marriage, bearing in mind the characters and difficulties of both parties, trying to be fair to both of them and expecting neither heroic virtue or selfless obligation from either, has the Respondent then behaved in such a way that the Petitioner cannot reasonably be expected to live with her?

Held

In assessing what constitutes such behavior, the court quoted Barker, P in Katz v. Kartz (1972) 3 AER 219 as saying, “…behavior in this context is action or conduct by the one which affects the other….  It (the behavior) causes the court to come to the conclusion that it is of such gravity that the Petitioner cannot reasonably be expected to live with the Respondent. The court held that the question (established in our issue above) is one of finding of fact and the degree to which the act complained of has affected the marriage has to be taken into consideration; a decree will be refused if a respondent’s behavior arising from ill health, physical or otherwise is less severe. Most importantly, the court had to make a finding that despite longer periods of life together the total effect of the Respondent’s behavior during the marriage such that requirements of section 1(2) (b) had been satisfied. The court made a finding that the respondent had completely reformed and stopped drinking. Moreover, the parties had stayed with each for more than six months since the date of the last incident complained of. This proved that the petitioner could reasonably be expected to live with the respondent

Commentary

I believe I wouldn’t do justice to this case summary without mentioning the following: (i). Bweupe J labored hard to stress the point that the question to be determined is not whether or not the respondent is bad or has done something bad but rather whether or not the petitioner cannot be reasonably be expected to live with her. (ii.) The test that is to be applied is objective but it has to take into consideration the subjective elements of whether it was reasonable to expect the Petitioner to put up with the conduct of his or her spouse, bearing in mind the character of each spouse and other relevant matters.

Just to add, there are other matters which have been omitted due to their subjective qualities. Most of which are in the form of marital complaints; this of course is not to say they are not important.

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B.v B. (1977) Z.R. 159 (H.C.)

Facts

The parties got married in the UK and adopted three children. The petitioner lived with the respondent for a considerable length of time and noticed that the respondent was ‘cold’ towards her. He showed no affection for her and this was quite exemplified by his silence when the petitioner had gone through a miscarriage. For years, the petitioner had tried to effect a reconciliation to make the marriage work but her efforts were not reciprocated. On coming to Zambia, their relationship grew more strained. This ultimately led to the petitioner maintaining her own bed in the same bedroom with the respondent (she stayed in the same bedroom because the other rooms were occupied by the children). She gave evidence to the effect that although they shared the same table at dinner, she made no effort to wash his clothes or laundry (that was taken care of by the worker).

Issue

 Could this marriage be dissolved on the grounds of desertion? That is, of course, founded on the premise of separation? If not, what about on the ground of unreasonable behavior of the respondent to the extent that the petitioner could not reasonably be expected to live with him?

Held

The court held that living apart does not necessarily mean physical distance. It could mean persons are under the same roof however, maintaining two different separate households. In determining whether the parties maintained two separate households, it was found that they did not. One of the parties could have slept in the living room for example, much to bewilderment of the children and the worker. The very fact that this extreme action was not taken revealed that the parties did not have the intention to live apart. However, the court found that the petitioner had proved her case to satisfy section 1 (1) and (2) (b) of the Matrimonial Causes Act 1973, in that the respondent had acted so unreasonably that it couldn’t be expected for her to continue living with him. There was evidence to the effect that the respondent was cold towards the petitioner despite her efforts to make the marriage work for considerable length of time; he showed no sympathy and had a lack of understanding. Hence the divorce was granted on that ground.

Commentary

In coming to the conclusion for dissolution of the marriage, the court applied the test in Mahande v Mahande.

On the aspect of desertion and living apart, the court also held that it makes no difference whether the petitioner stays under one roof with the respondent because he or she cannot find or cannot afford alternative accommodation. The words of Denning LJ in Hopes v Hopes in this regard are quite helpful, he said: “One of the essential elements of desertion is the fact of separation: can that exist whilst the parties are living under the same roof? My answer is: “Yes”. The husband who shuts himself up in one or two rooms of his house, and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat… He has forsaken and abandoned his wife as effectively as if he had gone into lodgings.”

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C v C AND H (1977) Z.R. 12 (H.C.)

Facts

The parties in this case were married in England. Two years later they came to Zambia and had two children, one of the children being as a result of the petitioner’s former marriage. The petitioner admitted an extra-marital relationship with a man (Mr. B) that lasted about six months or so. The respondent attacked this man (Mr. B) in barroom altercation and sustained injuries to his face as a result. In a separate divorce suit filed by Mr. B’s wife (Mrs. B), the petitioner admitted that she had committed adultery on one occasion with Mr. B [this was not used as a ground for divorce by the respondent].  There was also sufficient evidence of the respondent’s violence towards the petitioner.

Issue

Was the respondent’s behavior so unreasonable that the petitioner cannot be called to endure it?

Held

The court held that the petitioner had adduced sufficient evidence to support the finding of fact that the respondent was violent towards her. This of course following the holding of Mahande v Mahande  was unreasonable to the effect that the petitioner could not be called to endure it, taking into account her disposition, character and peculiarities. As regards the adultery, the court also held that the respondent could not rely on the earlier adultery of the petitioner as the same was forgiven and forgotten. Hence, the court was satisfied that the marriage had broken down irretrievably and dissolution was granted.

Commentary

Turning our minds to the standard of proof required in proving adultery, this case was particularly instructive in that it was held that while the criminal standard of proof no longer applies to the charge of adultery as it did in the old cases, a high standard of proof is still required to substantiate the allegation.

In other words, unlike criminal law where the standard of proof is beyond any reasonable doubt, an allegation of adultery can succeed with some degree of doubt, but this, of course, has to be negligible compared to evidence adduced to the contrary. (i.e. it has to be on a balance of probabilities).

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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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VENTER v VENTER AND JOUBERT (1966) Z.R. 60 (H.C.)

Facts

Prior to this case, Blagden CJ dissolved the marriage on the grounds of adultery of the petitioner’s wife with the co- respondent, a Mr. Joubert. The divorce petition included a prayer for legal costs (which the court granted) and another for £500 damages against the co-respondent in relation to the adultery (which was adjourned, hence this case).

Issue

How much should the court award as damages occasioned by the adultery of the co-respondent and what metrics should it consider in awarding such damages?

Held

First and foremost, the court held that damages for adultery are compensatory and not punitive. What this means is that, unlike the objects of criminal law, the objective here is not to punish the offender but rather to comfort the petitioner for injury to feelings. Secondly, these damages fall under two distinct categories: (i). damages to the actual value of the wife (ii.) damages to injury to feelings of the husband. Of course, both of these are in relation to the adultery. As to the first category, the actual value of the wife can be further categorized into two things: (a) pecuniary loss, which could be loss of the wife’s fortune, her income or her assistance in the husband’s business among other things. Then (b) consortial loss, which is loss of aspects that make her a good wife such as affection, companionship and faithfulness. On the aspect of pecuniary loss, the court found that the husband’s evidence was that although his wife was working and drawing a salary, she had not been paying any of it over to him. Therefore, the pecuniary loss was negligible. His consortial loss also was not high owing to the fact that by 1965-1966, their marriage was no longer a happy one. However, the court held that injury to his feelings was of more substance because the co-respondent was his friend. In consequence, an award of £300 as damages was awarded to the husband.

Commentary

The hallmarks of this case are by far the principles elucidated in awarding damages. It’s also worthy of note that not knowing that someone is married is not a mitigating factor in awarding damages of this nature; Blagden CJ said that, “any man contemplating extra-marital sexual intercourse would be put upon inquiry as to the marital status of the other party to the intercourse.”

Furthermore, another consideration in awarding damages is if the husband and wife were living happily together, the co-respondent’s actions will have caused serious damage. However, if the relationship between them was strained or they were living apart, much less damage, or possibly none at all, will have been caused.

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