When contracting a marriage, couples usually do it, “for better for worse, for richer or poorer, till death do us part”. It is also common for the celebrant of the marriage to quote God’s word and say, “what God has put together, let no man separate”. All these declarations are followed by joyous ululations from the crowd attending the ceremony who always wish the couple, “a happy marriage!”
But like all territory that is uncharted, marriage comes with its own challenges. Depending on how fast unpleasant events occur in the marriage, it is soon on the rocks, and crumbling. Whereas a couple may choose to separate and “give each other space” as they “work out the relationship”, others usually feel that there is nothing to work out, that the marriage is over.
This is the point at which the couple decides to go for a divorce.
The family is the basic unit of the nation, and the courts are not quick to dissolve marriages which were solemnized according to the laws of the country. In developed jurisdictions, their laws provide for no fault divorces – the kind where the parties say, we are simply ending this marriage, no one is necessarily at fault. They are fast, and the hearing in court is not as lengthy as one where the parties are tasked to justify why the marriage should be dissolved.
In Kenya and in Uganda, all divorces must be justified before a court of law. Parties must submit to the jurisdiction of the court where they are domiciled and tell the court that the marriage has failed because of reasons stated, and that as such, the parties do not wish to continue with the marriage. The reasons so stated must be legally recognized as grounds for divorce. The person who approached the court is called the petitioner, while the other person from whom the petitioner seeks to be divorced is the respondent.
When responding to the divorce petition, the respondent has the right to put in a cross petition. In a cross petition, the respondent becomes the petitioner and the original petitioner becomes the respondent. The respondent/petitioner then gives his reasons why the court should grant him or her a divorce from the petitioner/respondent.
A cross petitioner creates a “daggers drawn” scenario in a divorce case. The court must however hear both petitions, and in such circumstances, is left with no choice but to grant the divorce, if the grounds are tenable in law.
The grounds for divorce are:
When the good Lord commanded us that “thou shall not commit adultery”, He must have seen that mortal men are possessive when it comes to sexual relationships. Most marriages apart from Mohammedan and African customary marriages are characteristically monogamous. As such, a man or a woman who is a party to a civil marriage, for example, is expected to have only one sexual partner, his wife. The same goes for his wife. – she is expected to have one sexual partner, her husband.
This of course is not always the case. Men and women always have extra marital relations which when discovered lead to divorce. It is encouraged that where the petitioner accused the respondent of adultery, the person with whom the respondent has been having an extra marital affair should be added as a co-respondent. A petitioner is also entitled to damages from such a co-respondent.
Adultery must be proved against the respondent before the court grants a divorce.
This ground for divorce is often over stretched to cover many scenarios. Cruelty can be interpreted to mean acts and omissions which hurt the other person on a physical, mental and emotional level.
For example, being silent while to other person is talking may be interpreted as cruelty. More so, behaving as if the other person does not exist can also be considered as cruelty. Physical beating and torture is cruelty. Where a spouse is battered by the other, then he or she has a good ground for divorcing their abusive spouse. Being rude and hostile to the children in the marital home, whether they are of the marriage or not can also be considered as cruelty. Where a spouse says hurtful things to the other or makes disparaging comments about the other, it is still cruelty.
Since marriage is said to be based on mutual love, trust, respect and commitment, any shortcomings on what is expected, especially those actions which cause emotional, physical and mental distress can easily be interpreted to mean cruelty.
Cruelty must be proved before it is accepted as a ground of divorce in court. For example, a battered spouse must produce medical evidence to show that he or she was treated at a medical facility for injuries which were occasioned by their spouse. Physical cruelty can also be proved by showing police reports made and any conviction which was made against the abusive spouse.
This is where the petitioner tells the court that he or she has irreconcilable differences with the respondent, differences which do not permit him or her to continue living with the other party as a husband or wife.
For example, a petitioner for divorce on ground of irreconcilable differences may tell the court that his spouse has since the start of their marriage taken on the practice of witchcraft or wizardry, which he or she, the petitioner, cannot stand.
Anything the petitioner cannot stand about the respondent, especially that which the respondent started to do after the petitioner was a party to their marriage, or that which the petitioner discovered that the respondent does after entering the marriage, can be said to be an irreconcilable difference. The petitioner must show the court that if he or she had known about that act/practice/omission before entering marriage with the respondent, he or she would not have entered that marriage.
Desertion or abandonment
Be careful when you pack your bags and leave your spouse alone in the matrimonial home! Unless it is for reasons such as study and work, reasons which the other spouse has consented to, one must not leave their matrimonial home for a long period of time.
One of the benefits of marriage is consortium, which is got from the other person. Their absence therefore denies the staying spouse of consortium, thus taking away the whole essence of marriage.
Long absences from home entitle the aggrieved spouse to petition the court for divorce, on ground of desertion. The petitioner simply must allege that the respondent has not been resident at the matrimonial home for a number of years thus depriving the petitioner of consortium. The petitioner will of course go on to say that he or she has not enjoyed the companionship that comes with marriage, and as such would like to dissolve this between him or her and the respondent, which is an imitation of marriage.
Sometimes, couples separate to allow for a breather in their marriage. The separation may be for a given period of years, but may not work well for the petitioner who may feel that the separation is too long and that he or she would like to put an end to their marriage with the respondent
Sometimes, it is permitted to divorce a spouse who catches a terminal illness or one who becomes bankrupt. Terminal illnesses include, HIV/AIDS, Ebola, Paralysis, and such other diseases which threaten the like of the respondent. Bankruptcy on the other hand takes away one’s legal capacity to contract a marriage or to be party to any legal contract.
Although it looks ruthless to divorce a spouse who has caught a terminal illness, it is permitted, and it actually happens.
In all cases, the court gives an allowance to the parties to reconcile. Following a successful divorce petition, the marriage is suspended legally for a period of six months. This is done through a court document called “decree nisi”. A “decree nisi” has the effect of warning the parties that they could make the marriage work within six months from the date of its issue, failure of which the marriage will be dissolved. Marriage is dissolved when a decree absolute is issued by the court.
In effect, a decree absolute dissolves the marriage. It brings the marriage to an end. Thereafter, parties are free to negotiate and contract fresh marriages, without being said to be committing bigamy.
Make sure to discuss with your lawyer, about the circumstances of your marriage. He or she will advise you best on the way forward. However, the decision of whether to divorce or to separate is the client’s decision to make. No lawyer will advise a client to divorce their spouse, and if such a thing happens, it is not only unprofessional, it is a side step out of the mandate of the lawyer. When you have made up your mind on whether to divorce or separate from your spouse, visit your lawyer for advice on how to go about your decision.
BY SAMALI BITALA
This article appears in our newsletter, The Deuteronomy Vol 11 Issue 2 of November 10th, 2017. To receive The Deuteronomy in real time, click HERE