MURADA v MURADA 2008 (2) ZLR 326 (H)

Flynote

Family law — husband and wife — divorce — grounds — grounds for divorce objectively proved — court obliged to grant a divorce in such case — irretrievable breakdown of marriage — two characteristics thereof — plaintiff no longer desiring to maintain the marriage relationship — in itself an indication of the breakdown of the marriage — thereafter the court required to determine objectively the irretrievability of the breakdown

Headnote

If a ground of divorce has been objectively proved, a court has no choice but to grant the divorce. As far as the irretrievable breakdown of marriage is concerned, there are two characteristics thereof. Firstly, the marriage relationship is no longer normal and, secondly, that there is no reasonable prospect of the restoration of the normal marriage relationship.

Where a plaintiff has made a subjective decision that he or she no longer desires to maintain the marriage relationship, this, in itself, is an indication of the breakdown of the marriage, but not necessary of an irretrievable breakdown. The enquiry is then to examine the reasons advanced by the plaintiff objectively and to determine the irretrievability of the breakdown. Where it is the party's stated desire to terminate the marriage, it is in reality hardly possible for a court to find that there is a reasonable prospect of reconciliation between the parties. A further factor could be that the parties have separated: this would evince a serious violation of consortium i.e., inter alia, loyalty, love, affection, comfort, mutual services and sexual relations which characterise a normal marriage relationship.