Jurisdiction simply refers to the power of a court to hear and determine a matter. The primary basis for jurisdiction of the High Court of Zimbabwe in divorce matters is the domicile of the husband at the time the action for divorce is instituted. In terms of section 3 of the Matrimonial Causes Act (Chapter 5:13) there are three other additional cases where the court shall have jurisdiction provided the Plaintiff or the Applicant is the wife.
It is important that the Plaintiff states in the declaration the basis on which the court has jurisdiction to hear the matter otherwise the court will decline to hear the same. The court can raise the issue of jurisdiction on its own without prompting by the other party. Where the jurisdictional facts are properly pleaded the court usually proceed to entertain the matter.
As stated above, the primary basis for the court’s jurisdiction is the domicile of the husband at the time the action for divorce is instituted. The domicile of the husband may be by origin or by choice. Thus where the husband was born and bred in Zimbabwe and considers Zimbabwe to be his permanent home, then the court will have jurisdiction notwithstanding the fact that the husband is currently residing outside Zimbabwe. This is the case with most Zimbabweans in the diaspora. Domicile by choice occurs when one abandons his domicile by origin and resides in Zimbabwe with the intention to permanently so reside. Matrimonial domicile is therefore different from domicile for immigration purposes where the duration of the person’s stay is of great significance (see Latif v Latif SC49/04).If the Plaintiff alleges facts pointing to the domicile of the husband and those facts are not denied or controverted by the Defendant there is no basis upon which the court should deny jurisdiction.
Reliance on domicile of the husband as the only ground of jurisdiction led to women having difficulties in approaching the court for dissolution of marriages where for instance the husband has abandoned Zimbabwe as his domicile of origin or was never domiciled in Zimbabwe in the first place. This led to the enactment of section 3 of Matrimonial Causes Act which provides as follows;
3 Additional jurisdiction
(1) Without prejudice to any other basis of jurisdiction which the High Court has, the High Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of marriage, where the wife is the plaintiff or applicant—
(a) if the wife has been deserted by her husband and, immediately before the desertion, the husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion; or
(b) if the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at least two years immediately before the date of commencement of the action and is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe; or
(c) if at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years and is still so residing.
A number of issues arise from this section. First, the additional jurisdiction only applies where the wife is the Plaintiff or Applicant. Second, it is ‘additional jurisdiction’ which means where the husband is domiciled in Zimbabwe there is no need to rely on section 3 of the Act. Third, section 3(1)(b) relates specifically to a situation where the marriage was celebrated in Zimbabwe which simply means section 3(1)(a) and section 3(1)(c) can be relied on even where the marriage was not celebrated in Zimbabwe. In the case of a foreign marriage it is always advisable to have the marriage certificate authenticated by for example the foreign affairs ministry of the respective country.
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