Simbarashe Nyashanu v Inonge Siamwala (2024/HPF/D221) [2024] ZMHC 266 (14 May 2024)

, IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) 2024/HPF/D221 BETWEEN: AND , ¼ MA~ 20" REG\STRV PETITIONER INONGE SIAMWALA RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE W. S. MWEEMBA AT LUSAKA. For the Petitioner: For the Respondent: No Appearance. Mr. S. Nyashanu (In Person). JUDGMENT LEGISLATION REFERRED TO: 1. 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) l F. L. R. 775 at 77. SIMBARASHE NYASHANU (the Petitioner) filed this Petition for dissolution of his marriage on 28th March, 2024 seeking to dissolve his marriage to INONGE SIAMWALA (the Respondent). The Petition was brought pursuant to Section 8 and Section 9 (1) (e) of the Matri.monial Causes Act. Jl The Petition reveals that the Petitioner was married to the Respondent on 12th December, 2015 at Miracle Life Family Church in the City and Province of Lusaka of the Republic of Zambia; that both the Petitioner and Respondent are domiciled in Zambia; that immediately after the celebration of the marriage the Petitioner and the Respondent lived together as husband and wife in Salama Park, Lusaka; that the Petitioner is a Merchandizing Manager and residing in Chalala, Lusaka while the Respondent is a Cashier at builders warehouse and residing at Chelstone Flats, Lusaka. The Petition further reveals that there are two children of the family born between the Petitioner and the Respondent during the subsistence of the marriage. Their names and dates of birth are as follows: 1. ARELLAH NYASHANU- 10th March, 2017. 2. ARIA NYASHANU- 25th May, 2018. The Petition also reveals that there have been no previous proceedings in any Court of Law in Zambia with reference to the said marriage between the Petitioner and the Respondent or with reference to any property of either or both of them. That there are no proceedings continuing in any Court outside Zambia which are in respect to this marriage which are capable of affecting its validity and subsistence. That no agreement or arrangement has been made between the parties for support of the Respondent or Petitioner in the event of the decree being granted. J2 The Petitioner alleges the irretrievable breakdown of the marriage on the ground that the parties have since December, 2018 lived apart for a continuous period of at least five (5) years immediately preceding the presentation of Petition. He stated the particulars of the five years separation as follows; 1. That the Petitioner and Respondent have been living apart from December, 2018 and from that time there has been no form of intimacy . . 11. between them . That there is no hope of the parties reconciling or resuming cohabitation. The Petitioner prayed; 1. That the marriage be dissolved. 2. That the Court Orders that each party take possession of their own chattels. 3. That there be an Order for joint Custody of the Children of the family. 4. That each party bears their own costs of these proceedings. 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 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, J3 t 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). 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 five years' separation should also 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 the Court may determine attendance of the parties or their advocates and shall issue a notice of the date of delivery. the matter without (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." J4 • 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 am accordingly satisfied that the marriage solemnized between SIMBARASHE NYASHANU and INONGE SIAMWALA on 12th December, 2015 at Miracle Life Family Church in the City and Province of Lusaka of the Republic of Zambia has broken down irretrievably in terms of Section 8 and Section 9(l)(e) of the Matrimonial causes Act No. 20 of 2007 of the Laws of Zambia. I am further satisfied that granting a Decree Nisi will not cause grave financial or other hardship to the Respondent. I accordingly Decree that the said marriage be dissolved and a Decree Nisi is hereby pronounced dissolving the marriage. 1. The said Decree is to be made absolute within six (6) weeks from the date of this pronouncement unless sufficient cause be shown why it shall not be so made. 2. I Order that each party shall take possession of their own chattels. 3. The Petitioner and Respondent are granted joint custody of the children of the family. 4 . I Order that the parties shall each bear own costs of this suit. DELIVERED AT LUS. AMl'H!S ! 4TH DAY OF MAY, 2024 . ..:,H C f'.t I D T nr- _ hi - -, - HIGR~Rm.tJIJDGE PQ GQ)I. 500(.7 - U S AKA 0 5 -~-