Remmington Mujuru v Mercy Muranganwa

### Preamble
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HH 592-25
HCHF1193/25
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REMMINGTON MUJURU

versus

MERCY MURANGANWA

HIGH COURT OF ZIMBABWE

MHURI J

HARARE; 17 September & 2 October 2025

Opposed pplication

V Vengai, for the applicant

A Nyamukondiwa, for the respondent

MHURI J:   This is a court application for registration and recognition of the validity of a foreign divorce decree in terms of s 12 of the Matrimonial Causes Act [Chapter 5:13] wherein applicant seeks the following relief:

The application for registration and recognition of the validity of foreign divorce decree be and is hereby granted.

The final divorce decree of the court of England between the parties granted by the Family court at Birmingham on 14 of May 2014 confirming the decree nisi granted by the Birmingham County Court on the 9 December 2013 be and is hereby registered as an order of this court.

3.Each party to bear its own costs.

The brief background facts giving rise to the application are that in 1998 the applicant and the respondent entered into an unregistered customary marriage in Zimbabwe and since then they had been living as husband and wife. Sometime in 2002, the parties relocated from Zimbabwe to the United Kingdom. On 13 February 2004 they got married under the United Kingdom Marriages Act 1949 at Birmingham. During their stay in the United Kingdom the parties came to a mutual understanding that their marriage relationship had irretrievably broken down to an extent that there were no reasonable prospects for its restoration into a normal marriage relationship as they were on separation for more than four years. As a result of this mutual understanding on 22 August 2012, the applicant-initiated divorce proceedings and filed a divorce petition under case number BMI12D01879 at Birmingham Court in the United Kingdom on grounds that the marriage had broken down irretrievably. The respondent in turn filed consent papers consenting to the divorce petition. In May 2014, the Family Court at Birmingham issued a decree of divorce confirming the decree Nissi that was granted on 9 December 2013.

During the subsistence of the marriage the parties were blessed with one child PRM who is now a major. The parties acquired two immovable properties in Zimbabwe during the subsistence of the marriage, that is; Stand Number 6164, Mkosana Victoria falls and Stand 742 Aerodrome Victoria Falls. The respondent also acquired an immovable property in the United Kingdom which is known as number 4 Bolnely Rd, Quinton, Birmingham, B23 2PX. Despite the consent paper from the parties relating to the divorce, custody and property sharing, the Family Court in Birmingham only dealt with the issue of divorce.

At the commencement of the hearing the respondent raised three preliminary points to the effect that the applicant has no locus standi, the High Court has no jurisdiction to determine this application, and the application does not meet the requirements needed to lodge this application.

The respondent’s submission on the first preliminary point was that the applicant has no locus standi to institute the present application. It was his argument that the present application has been filed by Remington Mujuru who is the respondent's former husband which is wrong at law because s 12 of the Matrimonial Causes Act [Chapter 5:13] (The Act) requires only the woman (wife) to file such an application. The present application is therefore inappropriate because the applicant is the husband. He relied on the case of Makoni v Makoni HH 22/23 to substantiate the argument that only a woman (wife) has locus to institute proceedings like the present one.

Submitting on the second preliminary point the respondent contended that the High Court has no jurisdiction to hear and determine the application because the parties were never married in Zimbabwe thus, since their marriage was/is not registered in Zimbabwe it is absurd to have an application to register the divorce decree in Zimbabwe. It is the respondent’s submission that the application is academic because the court can only recognise the decree and has no jurisdiction to register same. Mr Nyamukondiwa further contended that without demonstrating in the papers that the husband was not domiciled in the United Kingdom the jurisdiction of this court has not been invoked.

The respondent further contended that the application is fatally defective because it does not meet any of the requirements imposed by s12 of the Act. The founding affidavit is bare of the specific requirements which are stated in the Act. It was respondent’s prayer that the application be struck off.

The applicant’s response to the preliminary points was that the issue of jurisdiction emanated from the issue that the applicant has no locus standi to institute the present proceedings. Ms Vengai submitted that s 12 of the Act is not limited to women or specific gendered cases. It concerns the recognition of foreign divorce, judicial separation, or nullity of marriage decrees where the husband was not domiciled in that foreign country. It was applicant’s further contention that locus of the applicant is supported by virtue of the fact that he was not domiciled in the United Kingdom which country granted the decree.

The applicant prayed for the dismissal of the preliminary points raised submitting that the applicant has locus standi since he was domiciled in Zimbabwe at the time the divorce order was granted in the United Kingdom, and the respondent has not disputed that fact. Reliance was made on the cases of Nyanhongo v Nyanhongo HH 400/22 and Makoni v Makoni HH22/23 and many others to substantiate their submissions.

Responding to the third preliminary point, the applicant contended that when one is making an application in terms of s 12(1) of the Act it is not a requirement that he should prove that the laws of Zimbabwe and the foreign court that granted the divorce decree are substantially the same. The husband’s domicile is the deciding factor.

Whether or not the applicant has locus standi to institute the present proceedings?

The respondent has tried to cling onto the point that the applicant has no locus standi submitting that ss 3 and 12 of the Matrimonial Causes Act provide that only the woman makes an application like the one made by the applicant. From the onset it should be noted that the husband’s domicile determines his locus standi and it is on this that the High Court’s jurisdiction is invoked.

Section 12 of the Act deals with recognition of certain decrees and orders. It provides as follows:

“12(1) An appropriate court may recognize the validity of any decree or an order of divorce, judicial separation or a nullity of marriage made in any country in any case in which the husband was not domiciled in that country if —

(a) it is satisfied that the law of that country contains provisions which correspond substantially to the relevant provisions of section three or

(b) the President has by proclamation in a Statutory Instrument declared that the law of that country contains provisions which correspond substantially to the relevant provisions of section three.

(2) No proclamation shall be issued in terms of paragraph

(b) of subsection (I) unless the President is satisfied that adequate provision is made under the law of the country concerned for the recognition by the courts of that country of the decree and orders made under section three in any case in which the husband is not domiciled in Zimbabwe.

(3) …”

Section 12 of the Act is not restricted to women neither is it gender based as alleged by the respondent. Instead, it provides for recognition of decrees or orders of divorce, judicial separation or nullity of marriage made in any country in any case in which the husband was not domiciled. Section 3 only comes into play when it is the wife who is making an application in terms of s12 of the Act.

Section 3 of the Act 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.

(2) The High Court shall, in an action referred to in subsection (1), have jurisdiction to entertain any counter-claim made by the husband which arises out of the marriage.

(3) In any proceedings in which the High Court has jurisdiction by virtue of this section the issue shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in Zimbabwe at the time of the proceedings.” (underlining my own)

The case of De Jager v De Jager 1998 (2) ZLR 419 (HC) defined domicile as follows:

“THE MEANING OF DOMICILE

…It is important to stress that domicile is not the same as residence. As distinct from residence, domicile does not only involve a physical element.  There is also a mental element consisting of an intention to settle in a certain country.  Domicile is the place which is or which the law considers to be the permanent home of a person.  Two principles flow from this: every person must have a domicile and no person can have more than one domicile at a particular time, although a person may be homeless or have more than one residence: Spiro Law of Parent and Child 4 ed pp 131-132.

THE COMMON LAW

The common law position is that the jurisdiction of this court in matters of divorce depends upon the domicile of the husband at the time when the action is instituted - Howard v Howard 1966 RLR 182 (G); 1966 (2) SA 718 (R); Sinclair (formerly Steinbock) v Sinclair (formerly Steinbock) [1967] 1 All ER 905 (P); Boberg The Law of Persons and the Family pp 57-58.” (underlining my own)

In Makoni v Makoni HH22/23at p 6 wamambo J held:

“The other consideration is that the husband was not domiciled in that country. The question then arises, was the husband not domiciled in the United Kingdom?  The question has to be in the affirmative for the decree to be recognized.”

In casu,the applicant is the one who initiated the divorce proceedings in the United Kingdom and is the same applicant who is applying for the registration of the decree for divorce. In the circumstances the applicant has locus standi to institute the present proceedings. The applicant has the locus standi to institute the present application on the basis that he was domiciled in Zimbabwe at the time the divorce decree was granted in United Kingdom. The consideration in an application of this nature is that the husband being the applicant herein was not domiciled in the United Kingdom. In casu, the applicant has alleged facts pointing to his domicile and those facts have not been denied or controverted by the respondent, therefore there is no basis upon which his legal standing can be questioned.

Whether or not the High Court has jurisdiction over this application?

A good starting point in addressing whether the High Court has jurisdiction to determine the present application is the Constitution of Zimbabwe, 2013.  Section 171 provides as follows:

“171 Jurisdiction of High Court

(1) The High Court—

(a) has original jurisdiction over all civil and criminal matters throughout Zimbabwe;”

This provision must be read together with s 13 of the High Court Act [Chapter 7:06] which reads as follows:

“13 Original civil jurisdiction

Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe.”

On the face of it, the High Court has jurisdiction over all civil matters within Zimbabwe.

Concluding on the question of the High Court’s jurisdiction in divorce matters MUCHAWA J in Nyanhongo v Nyanhongo HH 400/22 at p 6 held that:

“The question of jurisdiction of this court cannot have been seriously raised by the defendant considering that, as submitted by his counsel, he wishes to use s 12 of the Matrimonial Causes Act for the validation and registration of the USA divorce decree and he needs to be domiciled in this country in order to do that.”

The Supreme Court in the case of Rutsate v Wedzerai and Ors SC45/22 at para 18 held:

“The original jurisdiction of the High Court is unlimited, that is to say, it can hear and determine any civil dispute, whatever the nature of the claim.”

The respondent also argued that the application is inappropriate and improperly before the court because it does not meet the requirements of s 12 of the Act. I find this argument meritless as clearly held in the case of Nyanhongo (supra) when one invokes s 12 the only requirement is to plead domicile for the application to be properly before the court.

In the circumstances I find all the preliminary points raised meritless and dismiss them. Having dismissed the preliminary points raised by the respondent, I now proceed to deal with the merits of the application.

Ms Vengai emphasized that a clear reading of s 12 of the Act shows that for the application to succeed it must be proven that the applicant was not domiciled in the United Kingdom which country granted the decree. Applicant stated he was not domiciled in the United Kingdom at the time he instituted the divorce proceedings and decree was granted. This was not disputed. The applicant further submitted that there is no need to establish that the United Kingdom laws contain provisions which substantially correspond to the provisions of s 3 of the Act. Section 3 of the Act only gives additional jurisdiction to the court where the applicant is the wife. It was applicant’s argument that s 12(a) of the Act would have applied if the respondent was the applicant or plaintiff. In casu, the applicant must only plead domicile for locus standi and jurisdiction to be invoked.

The respondent argued that s 12 of the Act requires the applicant to establish that s 12 is the same as the United Kingdom laws. The respondent further argued that the applicant has abandoned its reliance on s 12 of the Act leaving the court with no application to determine. It was Mr Nyamukondiwa’s submission that there is no need for the court to consider the applicant’s domicile because it is a fact that he went to the United Kingdom in 2002.

I am persuaded by the applicant’s submission as held in various precedents referred to earlier that when an application is made in terms of s 12 by a husband it is unnecessary to prove that the laws of the country that granted the divorce decree are substantially the same with the Zimbabwean laws. The requirement for the present application that is made by a husband is that he proves his domicile. If his domicile is Zimbabwe therefore this court can exercise its inherent jurisdiction and determine the application. I find no reason to withhold the registration and recognition of the divorce decree as prayed for by the applicant. I have found that the applicant has locus standi to bring this application and that this court has jurisdiction to hear and determine this application. In the result, I will grant the application and order as follows:

It is ordered that:

1. The application for registration and recognition of the validity of foreign divorce decree be and is hereby granted.

2. The final divorce decree of the court of England between the parties granted by the Family court at Birmingham on the 14th of May 2014 confirming the decree nisi granted by the Birmingham County Court on the 9th December 2013 be and is hereby registered as an order of this court.

3. Each party shall bear its own costs.

Mhuri J: ……………………………………………………

Macheyo Law Chambers, applicant’s legal practitioners

Ingwani,Chipetiwa Group of Lawyers, respondent’s legal practitioners