Newmann Muyatwa v Florence Kayenge Muyatwa (Nee Chota) (2024/HPF/D458) [2024] ZMHC 277 (8 August 2024)

" IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) 2024/HPF/D458 BETWEEN: NEWMANN MUYATWA AND ' I V ._J - _, jtA l~JRyq I <:::. 00t.i7 LUS PETITIONER FLORENCE KAYENGE MUYATWA (NEE CHOTA) RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE W. S. MWEEMBA AT LUSAKA. For the Petitioner: Mr. N . Muyatwa - I n Person. For the Respondent: Mrs. F. Kayenge Muy atwa - I n 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 NEWMANN MUYATWA (the Petition er) filed this Petition for d issolution of marriage on 30 th J u ly, 2024 seeking to dissolve h er m arriage to FLORENCE KAYENGE MUYATWA (the Respon den t) . Th e Petition was b r ou ght pursu ant to Section 8 and Section 9(1)(d) of the Matrimonial Causes Act No. 20 of 2007. J1 • The Petition reveals that the Petitioner was married to the Respondent on 4th May, 2019 at Powerhouse Tabernacle, Lusaka in the Republic of Zambia; that both parties are domiciled in Zambia; that the parties last lived together as husband and wife at Plot 13490 Meanwood Ibex, Lusaka; that the Petitioner and the Respondent are both Legal Practitioners and the Petitioner is employed at Messrs Mayembe Legal Practitioners and currently resides at Plot No. 18416, whilst the Respondent is currently unemployed and currently resides at Plot No. 941, Varna Valley, Lusaka. It was averred that there is one child of the family namely Eden Christian Muyatwa born on 8 th April, 2020; That there are no current or previous proceedings in Zambia or elsewhere with reference to the said marriage or between the parties with reference to any property of either or both of them; that there is no agreement or arrangement made between the parties for the support of the Respondent or Petitioner. The Petitioner alleges the irretrievable breakdown of the marriage on the ground that the parties have since 1st July, 2022 lived apart for a continuous period of at least two (2) years immediately preceding the presentation of the Petition and that the Respondent consents to a Decree Nisi being granted. The Petitioner prays for the following: i. ll. That the marriage be dissolved. That the Petitioner and the Respondent will have joint custody of the child of the family with the Respondent as Primary caregiver and both having liberal access to the child; J2 Ul. Court orders that the Petitioner will be responsible to maintain the child of the family by paying the child's school fees and all related expenses and that the Petitioner shall pay the Respondent not less than K 4,000 monthly as child maintenance; iv. That property settlement be done by way of giving the Respondent possession of a BMW Reg No. BA V 6783ZM and that title to the said vehicle be transferred from the Petitioner to the Respondent; and v. That each party bears its own costs. The Respondent filed Consent to Dissolution of Marriage on 30th July, 2024. She confirmed that her marriage with the Petitioner has broken down irretrievably and that they have lived apart for a continuous period in excess of two (2) years preceding the presentation of this Petition and she consents to the dissolution of the marriage with the Petitioner. I find that the Petitioner has sufficiently proved the contents of his Petition and is entitled to a Decree Nisi particularly that the Respondent is not contesting the divorce. I will therefore 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). 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 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 l 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 have considered the evidence of the Petitioner and noted that the Respondent has given her consent to dissolution of the marriage. I am therefore satisfied that the marriage solemnized between NEWMANN MUYATWA and FLORENCE KAYENGE MUYATWA on 4 th May, 2019 at the Powerhouse Christian Tabernacle in the City and Province of Lusaka in the Republic of Zambia has broken down J4 • irretrievably in terms of Section 8 and Section 9( l)(d) of the Matrimonial Causes Act No. 20 of 2007 of the Laws of Zambia. I am further satisfied that granting a D ecree Nisi will not cause grave financial or other hardship to the Respondent. I hereby invoke the provisions of Section 41 of the Matrimonial Causes Act, No. 20 of 2007 and grant the D ecree Nisi and I make the following Orders. 1. The Order of Decree Nisi shall become Absolute Six (6) weeks from the date hereof unless cause be shown why the same cannot be made Absolute. 2 . That the Petitioner and Respondent shall have joint custody of the child of the family with Respondent as a primary caregiver and both having liberal and reasonable access to the child . 3. That the petitioner shall be responsible to maintain the child of the family by paying the child's school fees and all related expenses and the Petitioner shall pay the Respondent not less than K4,000.00 monthly as child maintenance. 4. That property settlement 1s by way of the Petitioner g1v1ng the Respondent possession of a BMW Motor Vehicle Registration No. BAV 6783 ZM and that title to the said Motor Vehicle be transferred from the Petitioner to the Respondent within 30 days of the date of this Judgment. 5. Each party is to bear their own costs of the action. DELIVEREO--AT LUSAKA THIS 8™ DAY OF AUGUST, 2024. - • ~ AIJ 'j ,4~ WILLIAM' S. MWEEMBA v~ - 'HIGH COURT JUDGE K t:fpe- Ll}~ KA JS