Mutinta Sitemba v Thomas Kampamba Chilufya (2024/HPF/D. 336) [2024] ZMHC 299 (14 November 2024)

l IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) 2024/HPF/D.336 ~\>\JBLIC OF ZAA, ~~\.'i & CHILDREN'S D/1.,//JA 7s104- ~I'- _@.plCIARY bi G 4 NOY 2024j ~ ) REGISTRY 2 ~ / JJ ·O. i!OX 50067, L\JSl>-y.l'-/ PETITIONER BETWEEN: MUTINTA SITEMBA AND THOMAS KAMPAMBA CHILUFYA RESPONDENT Before The Hon. Mrs Justice T. S. Musonda For the Petitioner In person · For the Respondent Mr. Isaac Kumwenda of Messrs. T. S. Chilembo Chambers JUDGMENT ·Legislation referred to: . 1. The Marriage Act, Chapter 50 of the Laws of Zambia 2. The Matrimonial Causes Act, No. 20 of 2007 3. The Matrimonial Causes Rules, 1977 4. Statutory Instrument No. 72 of 2018, The High Court (Amendment) Rules, Chapter 27 of the Laws of Zambia 1. The Petitioner, Mutinta Sitemba and the Respondent, Thomas Kampamba Chilufya, were married on 9 th November 2013 in the Office of the Registrar at the Lusaka Civic Center in the City and Province of Lusaka of the Republic of Zambia as evidenced by the copy of the parties' Marriage . ·, Certificate, which was issued pursuant to the Marriage Act, Chapter 50 of the Laws of Zambia. .. CamScanner J2 2. The marriage did not produce any children. 3. As the Petitioner and Respondent are both domiciled iti Zambia, I have jurisdiction to entertain these proceedings under Sectiop 4 (3) of the ·' Matrimonial Causes Act, No. 20 of 2007 (hereinafter referred to as "MCA 2007"). 4. Furthermore, I have jurisdiction over these proceedings since the parties contracted a valid statutory marriage under the Marriage Act. 5. The Petitioner initially filed a Petition for dissolution of marriage on 29th May 2024, pursuant to Sections 8 and 9 (l)(b) of the MCA 2007. The Petitioner subsequently filed an amended Petition pursuant to Sections 8 and 9 (l)(d). 6. According to the Petitioner, the parties' marriage has broken down irretrievably on the ground that the parties have lived apart for a continuous period of two years immediately preceding the presentation of the Petition. 7. The Petitioner seeks the following reliefs: (i) That the court dissolves the marriage; and (ii) Each party to bear their own costs. 8. The Petitioner applied to have the matter listed on the Special Procedure List on 11th October 2024. 9. In the Affidavit in Support of Evidence filed in support of the application, the Petitioner stated the following: (i) Th e Petitioner and Respondent separated in March 2022, due . irreconcilable differences. (ii) Th e Petitioner concluded that the marriage had ended in March 2022, when the parties began having irreconcilable differences , leading to the Petitioner's departure from the matrimonial house. (iii) Th e Petitioner and Respondent have been living apart in separate residences since their separation. (iv) The Respondent consents to the divorce being granted for the dissolution of the parties' marriage, as evidenced by exhibit "MS2", a copy of the Respondent's consent. CamScanner J3 (v) The Petitioner craves the indulgence of this Court to grant her a Decree dissolving her marriage to the Respondent on the grounds stated in the Petition. 10. On 16th October 2024, the Registrar issued a Certificate upon receiving the application to list the Petition on the Special Procedure List, certifying that: (i) The Petitioner had sufficiently proven the· contents of the Petition. (ii) The Petitioner was entitled to a Decree. The Respondent consents to the divorce. Pursuant to the MCA 2007, the sole ground for a divorce is the 11. 12. irretrievable breakdown of marriage, as stipulated in Section 8, which states: 8. A petition for divorce may be presented to the C_ourt by either party to a marriage on the ground that the ma~iage has broken down irretrievably. 13. Section 9 (1) sets out the facts that can be relied upon to prove the irretrievable breakdown of a marriage. This Petition is specifically . grounded in Section 9 (1) (d) which provides that: 9.(1) For purposes of section eight, the Court hearing a Petition for divorce shall not hold the marriage to have broken down irretrievably unless the Petitioner 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. CamScanner 14. Pursuant to Section 9(1)(d) of the MCA 2007 C J4 grant a Decree if the following tw . ' a ourt can only o essential elements are met: (i) T he Separation period: The parties must have lived apart for a continuous period of at least two years preceding the presentation of the Petition; and (ii) The Respondent's consent: The Respondent must provide consent to the grant of the Decree. 15. Upon reviewing the Petitioner's Affidavit of Evidence; I find that the uncontested evidence shows that the parties have been living apart for two years and about two months preceding the presentation of the original Petition on 29th May 20244. · 16. Additionally, the Respondent consents to a Decree Nisi . being granted as evidenced' by the Consent to Dissolution of Marriage, exhibit "MS2". 1 7. Therefore, I am satisfied that the requirements of Sections 8 and 9(l)(d) of the MCA 2007 have been met. 18. Furthermore, I am satisfied that the Petitioner has proved that the parties' marriage has broken down irretrievably based on the aforesaid findings. 19. Despite this finding, I am obliged to co~sider Section 9 (4) of the MCA 2007 which mandates that a Court refrain from making a decree of dissolution of marriage where it is satisfied that there is a likelihood of cohabitation being resumed by the parties. 20. Considering that the Respondent has not contested the grant of the Decree Nisi, I conclude that, at this stage, . there is no possibility of cohabitation being resumed by the parties. 21. I have also considered Section 20, which empowers me to refuse to grant a Decree if the Petitioner has engaged in collusion. Upon careful consideration of the evidence before me, I have found no possibility of collusion between the parties in the filing of this Petition. CamScanner JS 22 . In conclusion, I hereby make the following orders: (i) THAT the marriage which was solemnized between the Petitioner and the Respondent on 9 th November 2013 in the Office of the Registrar at the Lusaka Civic Council in the City and Province of Lusaka of the Republic of Zambia, is hereby dissolved. (ii) THAT a Decree Nisi dissolving the said marriage is accordingly issued pursuant to Sections 9 (3) and 41 of the MCA 2007. (iii) THAT the Decree Nisi is a conditional order which shall be made absolute six weeks from today, 14th November 2024 pursuant to Section 43 (1) of the MCA 2007, unless sufficient cause be shown to the Court within six weeks from the making of this Decree, why such Decree should not be made absolute. (iv) THAT ancillary matters, such as maintenance of a party and property settlement shall in default of agreement be referred to mediation pursuant to Rule 4 (4) of Statutory .~. Instrument No. 72 of 2018, The High Court (Amendment) Rules, Chapter 27 of the Laws of Zambia. (v) THAT this being a family matter, each party shall bear their own costs. DATED THIS 14TH DAY OF NOVEMBER 2024 CamScanner