Who gets what after divorce?

Vaidah Mashangwa
Nowadays modern parents simply accept their sons and daughters back into the family after divorce yet a long time ago it was not easy to tell parents about divorce. The parents would call an aunt to counsel and persuade the daughter to accept the situation as it was.

NO one would really encourage couples to divorce bearing in mind the negative consequences it has on family members. Partners who divorce differ in their ability to handle divorce. Researchers have come to the conclusion that men are in a better position to handle the strain of divorce than women.

The main reason being that men are able to sustain themselves financially than women. More often than not, children remain in the custody of the mother and women generally have to take on that extra economic responsibility. In 60 to 80 percent of the divorce cases, mothers are given custody of the children.

In many traditional societies, unhappily married couples are encouraged to stay together because of the stigma attached to divorce.

Thio in his book Sociology a Brief Introduction points out that it is unfortunate that nowadays divorce has gained wide acceptance as a solution to marital unhappiness.

However, it must be borne in mind that divorce is not a rejection of marriage but a rejection of a specific partner and this is the same reason why some individuals remarry after divorce.

There are numerous reasons behind the current high divorce rates in most nations including Zimbabwe.

Firstly, in traditional societies, men depend mostly on marriage for sexual gratification and housekeeping, while women look for sexual gratification and at times financial and moral support.

Most of these reasons do not apply any more as both married couples can find sexual gratification outside marriage. With the advent of the “small house” and also infidelity among some married women, there is no longer any respect for the marriage institution.

Apart from that, some women can become financially independent without husbands and hence divorce at times does not threaten the financial position of some women. In addition, once couples divorce, it expands their network of eligible new partners and to an unhappy married couple divorce might sound more appealing.

Traditionally, couples were encouraged to stay in unhappy marriages for the sake of the welfare of the children and protection of the family name. Nowadays once love and affection are no longer felt by both individuals, they simply divorce. Other reasons that include the importance of keeping the family together are no longer valued.

Furthermore, young couples expect a lot from their partners when they get married unlike before. Young couples expect exciting romantic experiences and an intense love relationship which might be difficult to fulfil day in and day out as there are other social, economic and cultural factors that come in between the relationship.

As a result, most divorce cases among the young couples occur within the first four years or so of marriage. A long time ago, individuals were taught to persevere during times of hardships.

Nowadays modern parents simply accept their sons and daughters back into the family after divorce yet a long time ago it was not easy to tell parents about divorce. The parents would call an aunt to counseland persuade their daughter to accept the situation as it was.

In addition, nowadays there is a lot of individualism whereby people place their needs first before those of others. People are no longer sympathetic towards one another, they feel they have right to do whatever pleases them. If they are fed up with marriage then divorce becomes an option.

Traditionally, women were supposed to be submissive to their husbands and hence divorce was not an option.

There are different reasons why there are higher cases of divorce than before.These include incompatibility, financial constraints and domestic violence. In Zimbabwe the grounds for divorce are regulated by the Matrimonial Causes Act.

The first one is irretrievable breakdown of a marriage to the extent that restoration of a healthy relationship becomes impossible. The second one is incurable mental illness or continuous unconsciousness of one of the parties for at least six months before filing for divorce.

The other reasons are adultery, domestic violence as well as when the other party serves a long jail term or is declared a habitual criminal, cruelty and abuse of alcohol or drugs.

Divorce proceedings are governed by the type of marriage be it Chapter 5: 11 former Chapter 37 or Customary Marriage. In the case of Chapter 5:11, the couple have to apply for divorce at the High Court and for the Customary Marriage, couples approach the Magistrate Court.

During divorce there is usually contention over the matrimonial home as it is the most valuable asset in a divorce. In some instances the judge may ask spouse A to buy out spouse B or selling the house when it presents a heavy financial burden. There are many ways a judge might decide the issue of who gets the house.

At times when the couples have a significant amount of cash it might be very tempting to hide these assets especially if one is bitter and believes that he or she worked for the assets. This is illegal no matter how tempting and may lead into a host of legal trouble. If one lies this is termed perjury, a punishable crime, the same applies when one fails to provide financial information.

Assets accrued before marriage are not shared during divorce and remain the property of the owner. The other general rule is that of inheritance. Gifts received during the marriage also remain the property of the individual concerned. The lawyer will also give advice.

Where the courts are involved, they will look at a number of factors when sharing the assets including the length of the marriage, each spouse’s contribution, both financially and at the home.

If a woman is not formally employed it does not necessarily mean she will not receive anything as she would have contributed to the welfare of the family through the household chores.

It must be noted that the court decides on what is a fair, reasonable and equitable division of assets. Factors such as debts, responsibilities for the children and taxes are also considered. Some couples might have signed certain agreements before or during marriage, these will have more control on how to divide their assets.

An amicable divorce means an uncontested or no contest divorce. Who knows, maybe couples who divorce may fall in love again and stay together in a way that works.

Some couples may have the opportunity to heal and be free of hurt, anger and frustration and start all over again. So there is hope for restoration after divorce.

l Vaidah Mashangwa is Provincial Development Officer, Ministry of Women Affairs, Gender and Community Development Bulawayo Province. She can be contacted on 0772111592 or via email vmashangwa@ gmail.com