Mwandu Nkowani Makawa v Duddley Makawa (2021/HPF/D279) [2022] ZMHC 106 (30 March 2022)

IN THE HIGH COURT FO~AMJ3IA 2021/HPF/D279 AT THE PRINCIPAL REGIST 1: A HOLDEN AT LUSAKA (Divorce Jurisdiction) ~ _., II~ --,a~ ,...,, .... ~~'-,1 .,~ Ii : jl :fl. ,J.fi: J AN t. Mll ' - BETWEEN: ~ MWANDUNKOWANIMAKA P-ETITIONER AND DUDDLEY MAKAWA 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: No Appearance. 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 Mwandu Nkowani Makawa (the Petitioner) filed this Petition for Dissolution of Marriage on 26 th May, 2021 seeking to dissolve her marriage to Du.ddley Makawa (the Respondent). The Petition was brought pursuant to Section 8 and Section 9(1)(d) of the Matrimonial Causes Act, 2007. The Petition reveals that the Petitioner was married to the Respondent on 25th March, 2007 at Barak Ministries 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 in John La ing, Lusaka; the Petitioner is a Human Resource Officer at Customer Liaising while the status of the occupation of the Respondent is unknown. The Petition s h ows that there are three (3) children of the family namely : (i) Zoe Makawa (Female), t en (10) years old who was born on 24th December, 2010 and is in Grade 5 at St. Patricks School in Chilanga. (ii) Israel Makawa (Male), nine (9) years old who was born on 21 st May, 2012 a nd is in Gr ade 4 at St. Patricks School in Chilanga. (iii) Yiannis Makawa (Male) six (6) years old who was born on 2 nd May, 2014 and is in Gra de 1 at St. Pa tricks School in Chilanga. The Petition further reveals that there h ave been no previous proceedings in any Court of Law in Zambia with reference to the said marriage between the Petitioner and th e Respondent or with reference to a n y property of either or both parties. That there are no proceedings continuing in any Court outside Zambia which are in r espect to the marriage which are capable of affecting its validity and subsistence. That no agreement h as been made b etween the Petitioner and the Respondent in relation to the m aintenance of either p arty to these proceedings or children of the family or property sharing. The Petitioner alleges the irretrievable breakdown of the marriage on the ground that the parties h ave lived apart for a continuou s period of at least two (2) years immedia tely preceding the presentation of the Petition namely since July, 2018. That the Respondent consents to a Decree Nisi being granted. The Petitioner prays that her marriage to the Respondent be dissolved and that the Court makes the following Orders: 1). An order for maintenance. 2). The Petitioner be given an Order for the Custody of the Children of the family. 3). The Parties bear their own costs. The Respondent filed consent to Divorce on 26th May, 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 a ll 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) . J3 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 a lone 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 th e Marriage Act, Chapter 50 of the Laws of Zambia on 25th March, 2007 at Baraki Ministries in Lusaka has broken down irretrievably on account of the fact that the parties have lived apart for a continuous 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 Ac t, 2007. I am further satisfied that the Respondent consents to the Decree Nisi being granted. I therefore hereby invoke the provisions of Section 4 1 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. I refer the issue of the of maintenance to mediation pursuant to Order 31 Rule 4 of t he High Court Rules, Chapter 27 of the Laws of Zambia. 3. I refer the issue of the custody of the children of the family to mediation pursuant to Order 31 Rule 4 of the High Court Rules, Chapter 2 7 of the Laws of Zambia. 4. 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. JS