PREPARATION OF PLEADINGS IN MATRIMONIAL MATTERS: A PAPER

DELIVERED BY THE HONOURABLE MR JUSTICE SAMUEL KUDYA TO

FOURTH YEAR LAW STUDENTS AT THE UNIVERSITY OF ZIMBABWE ON
10 JUNE 2010

INTRODUCTION
I am pleased to be here after a long absence. I would like to thank Mr Muza for
inviting me to share with you some of the shortcomings that judges observe in
pleadings in matrimonial matters, particularly in motion court.

Matrimonial matters that are common in our courts are those involving decrees of
divorce and nullity of marriage. The law recognizes others such as restitution of
conjugal rights and judicial separation, which are no longer of any practical
relevance due to the principle of irretrievable breakdown. Judges are rule rigid
when it comes to matrimonial matters because it may prove difficult and
impractical to rescind a decree of divorce or nullity of marriage. My discussion will
be on a practical plane and will be devoid of case law. The objective is to equip you
with the practical skills that will stand you in good stead with your clients, fellow
legal practitioners and the court in your life after law school.

THE LAW
There are two pieces of legislation which you will do well to acquaint yourself with
in regards to matrimonial matters. These are the Matrimonial Causes Act [Cap
5:13] and The Rules of the High Court, 1971, as amended, and especially Order 35.
The former is a concise and brief statute that is comprised of 15 sections. The latter
is the bible of adjectival practice in the High Court. My focus on the former will be
on section (3) while in the Rules I will draw heavily from Order 35.

Service outside the jurisdiction and substituted service-Order 6 Rule 44 to 46

For the plaintiff to serve process such as the summons and declaration, the notice to
plead and notice of set down to a defendant who is outside the jurisdiction of the
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court, leave of the court or a judge in chambers is required. In this jurisdiction we

allow service by a process server in the jurisdiction in which the defendant resides.
In those circumstances where after a diligent search the plaintiff fails to locate the
whereabouts of the defendant for him/her to effect personal service an edictal
citation is granted in a chamber application that meets the requirements set out in
Rule 44 (2). The plaintiff will be permitted to publish the summons and or any
process that requires personal notice in a newspaper with wide circulation in the
foreign jurisdiction in which the defendant is believed to be in. We do not permit
service by couriers as these are not officers of the court and have no legal
responsibility to the court for the performance of their functions. We also do not
accept service by electronic mail as it is not feasible for the court to verify the
authenticity of such a medium.

Substituted service is found in Rule 46 and refers to service within the jurisdiction
of the court by a plaintiff who after diligent search fails to locate the whereabouts
and is unable to effect personal service. He /she makes a chamber application in
which he/she seeks service by other means that are acceptable to the court.

THE PLEADINGS
In matrimonial matters the pleadings consist of the summons commencing action,
the declaration, the appearance to defend, requests for further particulars, further
particulars, requests for further and better particulars, further and better
particulars, the notice to plead and intention to bar, the plea, counter-claim,
discovery, summary of evidence, pre-trial issues, pre-trial minutes and notices of set
down for the pre–trial hearing and the trial. The above list usually forms the basic
pleadings in a contested trial. There are other pleadings which relate to uncontested
trials only. These include the affidavit of evidence, the consent paper, the affidavit of
waiver and the draft order.
a) Summons commencing action-rule 269A and Form 30A
The basic pleading in matrimonial matters is the summons commencing action. This
is the document which informs the defendant of the nature of the suit brought
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against him or her. It must be served personally on the defendant. The summons
may or may not be accompanied by a declaration.

b) declaration-Order 17 Rule 109

A declaration is the statement which identifies the litigants and their addresses of
service, indicates the basis upon which the court assumes jurisdiction, sets out the
cause of action, and the relief sought. The most fundamental error made by legal
practitioners is the failure to set out the husband’s domicile. Even in these days of
gender equality, our courts assume jurisdiction in matrimonial matters on the basis
of the husband’s domicile at the time the summons is issued.

However, all is not lost for the wife who is a local citizen, or a local resident or whose
marriage was performed locally or whose husband was domiciled in Zimbabwe
before his desertion as she may found jurisdiction on the additional grounds set out
in section (3) of the Matrimonial Causes Act [Cap 5:13]. Section 3 reads:

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
counterclaim 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.
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These additional grounds, which are disjunctive, are predicated firstly, on the
domicile of and desertion by the husband who changes his domicile; secondly on the
place where the marriage was celebrated and the continued residence of the wife in
the country for at least two years and thirdly on the citizenship of the wife coupled
with a local residence for two years, which residence remains extant, before the
commencement of the proceedings.
c) Appearance to defend-Order 7 Rule 48
The defendant who opposes the action does so through an appearance to defend.
d) Plea-Order 18 Rule 116
A plea is the defendant’s rebuttal of the declaration.
e) Notice to plead and intention to bar
Once the defendant enters appearance but does not file his/her plea; the plaintiff
cannot proceed without filing a Notice to Plead and Intention to bar. Rule 272 (1) (a)
requires that the defendant be given 12 days notice to do so as opposed to the 5 days
notice spelt out in Order 12 Rule 80, which is the norm in other contested matters.
Most practitioners give 5 days notice and cause delays in the finalization of the
matter as they will be instructed to give the defendant the requisite 12 days.
f) Further particulars
The defendant may after serving the appearance to defend on the plaintiff seek
further particulars and thereafter further and better particulars. A notice to plead
cannot be used as a device to avoid supplying particulars by a recalcitrant plaintiff
nor can a dilatory defendant seek further particulars once he has been served with a
notice to plead.
g) Counter-claim-Order 18 Rule 120
The defendant may file a plea and co-join it with a counter-claim. The counter-claim
is the declaration of the defendant in which he sets out the basis of his/her claim.
The counter-claim is triggered by the main claim lodged by the plaintiff. The
plaintiff will become the defendant and is required to file a plea to it without first
filing appearance.
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Rule 272 (1) and (2) requires that a third party who is named in the declaration,
whether in the main or in reconvention or in any other document as the adulterer
who has intruded on an otherwise happy union should be served with that document
in order to give him/her an opportunity to respond if he/she wishes to do so.
h) Replication-Order 19 Rule 125
The plaintiff may file a replication, which is an answer to the plea. A replication
marks the closure of pleadings. It crystallizes the issues and brings about the process
called litis contestatio. The defendant’s plea is followed by the plaintiff’s replication.
i) Discovery
Thereafter the parties make discovery through a discovery affidavit and list the
documents each will rely on at the trial.
j) Pre-Trial Conference-Rule 182
Any of the parties may seek a pre-trial conference; but whoever does it is obliged to
file the request with a list of his/her issues and a summary of evidence. The issues
are the disputed facts upon which judgment rests. A summary of evidence contains
the brief evidence that each party will call to establish his/her claim or defence.

A pre-trial conference may result in the resolution of all or some of the disputes
between the parties. Some parties may reconcile and live happily ever after. The
plaintiff will in these circumstances withdraw the case. Others may dispense with
the need for a contested trial. In the latter instance the defendant is obliged to file a
withdrawal of his/her defence and any counterclaims he or she may have lodged.

UNOPPOSED ROLL-Rule 277B

Where the parties agree on the disputes and dispense with the need for a contested
trial at the PTC, the matter is referred to the unopposed roll, commonly known as
motion court. A matter may be referred to motion court at the PTC if the other
party is in default and the one in attendance moves for the striking out of the
defaulter’s defence or counter claim. The plaintiff may of its own accord refer the
matter to the uncontested roll where the defendant who has been personally served
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with the summons elects not to oppose the process; or having opposed the process is
barred by a notice to plead after the expiration of the dies induciae.

Where the defendant has ignored the plaintiff’s process the plaintiff will often be
awarded the relief that he/she seeks. In other instances the parties will agree and
will file a consent paper, which becomes the memorial of their agreement on the
custody, guardianship, maintenance of their offspring and their own maintenance;
the distribution of their matrimonial estate and costs.

a) Affidavit of evidence-Rule 277B

The uncontested trial proceeds through the medium of an affidavit of evidence. This
pleading substitutes oral evidence from the plaintiff. It is the document in which the
plaintiff is obliged to explain the contents of his/her declaration. If he/she omits vital
explanations, the conclusion of his/her case is delayed by the grant of a
postponement to a specific date or indefinitely to correct the omission. The affidavit
of evidence identifies the marriage certificate, affidavit of waiver and the consent
paper and the respective signatures thereon. An original marriage certificate or one
certified by the Registrar of marriages must be produced to the court before the
union can be terminated.
i) affidavit of waiver
An affidavit of waiver is a statement on oath filed by the defendant who has
been served with the summons but who does not wish to be served with
mandatory pleadings like the notice to plead, and the notice of set down.
ii) consent paper
This is the document in which the parties agree on the main relief and all
ancillary matters that will regulate their relationship after the termination of
their union. It covers the termination itself, custody, guardianship, maintenance,
the distribution of their matrimonial estate and costs.
Judges demand that it should be clear and, if need be, detailed enough to cater
for situations that may in the future become contentious between the parties.
The most common ones involve joint custody. In this jurisdiction judges are
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averse to award joint custody because of the difficulties that may arise when
disagreements over the welfare of the minor children erupt. We also prefer that
were portions of immovable property are to be awarded to each spouse, the
consent paper spell out how the property should eventually be disposed of, that
is whether one of the spouses buys out the other or whether it be disposed of to
best advantage in a disclosed time frame. This is done in recognition of the need
to achieve a clean break between the spouses.

iii) Draft order

The plaintiff must attach a draft order of the relief he/she is seeking. It must be
numbered. Normally the sequence of the relief should contain the main relief
sought followed by the award of custody (indicating the date of births of the
minor children in question), maintenance, distribution of movable assets and
immovable assets and costs. A consent paper may be incorporated in the draft
order hence the need for clarity, particularly in the disposition of assets.

b) Notice of set down

The last important pleading is the notice of set down. This is the document which
advises the defendant of the time place and date on which the uncontested matter
will be heard. In terms of Rule 272 (2) (b), like the summons and notice to plead, it
must be served personally on the defendant. Personal service is designed to ensure
that the litigant is aware of the pending adjudication of his/her personal rights so
that he/she may protect them if he or she wishes to do so, otherwise they will be
irrevocably lost.

THE JUDGE’S CHECKLIST

When the record of proceedings is laid before the judge in motion court he/she
checks for compliance with the Rules of Court, practice directions and the
substantive law. The most common mistakes in the pleadings are the following:
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1. the surnames of the parties are not the same and the names in the pleadings
are different to those in the marriage certificate or are misspelt;
2. absence of proof of service of the summons, notice to plead or notice of set
down;
3. where an alleged adulterer is named, proof of service on him/her;
4. the failure to plead the husband’s domicile in the declaration;
5. the failure to apply for a notice to plead and or give the defendant 12 days to
respond;
6. the failure to explain the husband’ domicile in the affidavit of evidence;
7. discrepancies between the declaration and affidavit of evidence;
8. the failure to produce an original marriage certificate or one certified by the
registrar of marriages; that certified by a commissioner of oaths is
unacceptable;
9. the failure in the affidavit of evidence to identify signatures on the marriage
certificate, consent paper(if any) and affidavit of waiver(if any);
10. absence of a properly drawn draft order.

CONCLUSION
I am aware that these observations may sound remote to you now, but if you decide
to pursue private practice, they will stand you in good stead.

Thank you.