FAMILY LAW

UNIVERSITY OF TECHNOLOGY FACULTY OF LAW

UNIT 4- DIVORCE
Objectives of Unit 2
Specific Objective Students should be able to: 1. Understand how marriages may be terminated namely: a. By death of one spouse b. By dissolution of marriage by a court of competent jurisdiction 2. Understand the divorce procedures. 3. etermine the grounds upon which a divorce may be granted. !. Understand how settlements between the parties are made and the provisions for minor children"relevant children on a dissolution of marriage in terms of: a. #ustody b. $aintenance %. Understand the provisions for maintenance and financial provision for dependent spouses pending and after dissolution of marriages under section 2& and 23 of the $atrimonial #auses 'ct. (. )ecognition of foreign divorces

Relevant legislation: The Matrimonial Causes Act The Maintenance Act

Read :
1) Bromleys on Family Law ,
!"

E#i!ion , C"a$!er %

TER&IN'TION OF &'RRI'(E) In English Law a valid marriage may be terminated only by: a. the death of one of the parties or b. by a decree of dissolution of marriage or divorce pronounced by a court of competent jurisdiction.

Termination by Death of One of the Parties The death of one of the parties ipso facto brings the marriage to an end. Prior to 1 !"# the disappearance of a spouse in a marriage union presented challenges. If $%s wife disappeared in circumstances in which it could presumed that she were dead# he could remarry. &owever if $ suddenly returned after he remarried# the second marriage was conclusively void. 'ection 1 of the () *atrimonial +auses ,ct was designed to treat with this situation as it permitted the +ourt to ma-e a decree of presumption of death and of dissolution of marriage if it is satisfied that there are reasonable grounds for supposing that the Petitioner%s spouse is dead. .amaica incorporated a similar provision in section of the *atrimonial +auses ,ct.

Proceedings for decree of presumption of death and dissolution of marriage .

9. (1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the Court to have it presumed that the other party is dead and to have the marriage dissolved, and the Court, if satisfied that such reasonable grounds exist, may ma e a decree of presumption of death and dissolution of the marriage. (!) "n any such proceedings the fact that for a period of seven years or upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved. (#) $ection 1% shall apply to a decree under this section as it applies to a decree of dissolution.

'ee Thompson v. Thompson /1 012 P3134 /1 012 1 ,ll E5 16! where 'achs. held that nothing must have happened during the period of seven years from which the Petitioner as a reasonable person would conclude that the other spouse was still alive. 7romley 8although the point was left open in Thompson v. Thompson the +ourt is hardly li-ely to accept that the belief is reasonably held unless the Petitioner has made all appropriate en9uiries. The jurisdiction is discretionary# therefore even if the Petitioner can claim the presumption the court will not pronounce a decree# contrary to the justice of the case where there is a probability that the other party is alive. This might occur if an e:plorer had e:pressed his intention of spending more than seven years in a country in which communication was impractical. , decree nisi must be rescinded if the other spouse is found to be still alive. ;nce it has been made absolute however it dissolves the marriage irrevocably even though the spouse subse9uently reappears.

DIVORCE The first principle was the <octrine of the indissolubility of marriage e:cept by ,ct of Parliament which was e:pensive. *atrimonial +auses ,+T 1"0= >()? @ ,<(LTE5A ;BLA C5;(B<@<I'TIB+TI;B 7ETDEEB *,B E D;*,B 1 !F () 8 grounds e:tended to include cruelty# desertion for three years# supervening incurable insanity. The <ivorce 5eform ,ct 1 1 replaced it with one ground of irretrievable brea-down of the marriage which could only be proved by satisfying the court of : 1? adultery F? cruelty !? desertion 3? separation for two years if 5espondent consented to the grant of the divorce and five years if he did not .amaica had a similar legislation namely the <ivorce ,ct which governed divorce proceedings. 'ee Nooks v. Nooks .* 1 "! '+ F >+arilaw ? which is a case concerning a

contested divorce decided under the old <ivorce ,ct. The Petition for dissolution of marriage in that case was sought on the basis of separation for a period of 0 years. The <ivorce ,ct in .amaica was repealed and replaced with the *atrimonial +auses ,ct of 1 " . This ,ct changed the law in relation to divorce in .amaica as it removed the re9uirement for the Petitioner to prove fault on the part of the 5espondent in order to obtain a divorce. (nder the present law there is no re9uirement for the +ourt to find any of the parties at fault.

THE MATRIMONIA
THE $"RI#DI!TION O% MATRIMONIA

!A"#E# A!T
THE !O"RT TO DI##O &E MARRIA'E# "NDER THE

!A"#E# A!T

Section 15 of the Matrimonial Causes Act

1&. (1) 'he Court (meaning the $upreme Court of (amaica )shall have )urisdiction in proceedings for dissolution of marriage or for a decree of nullity of marriage if either party to the marriage * (a) is a (amaican national+ (b) is domiciled in (amaica at the date of the commencement of the proceedings+ or (c) is resident in (amaica at the date of the commencement of the proceedings, and has been ordinarily so resident for a period of not less than twelve months immediately preceding that date. (!) "n proceedings under subsection (1) of section 9, the Court shall have )urisdiction if the petitioner * (a) is a (amaican national+ (b) is domiciled in (amaica at the date of commencement of the proceedings+ or (c) is resident in (amaica at the date of commencement of the proceedings and has been ordinarily so resident for not less than twelve months immediately preceding that date. (#) "n proceedings under subsection (1) of section 1,, the Court shall have )urisdiction in the following cases, that is to say * (a) if either party to the marriage *

(i) is a (amaican national+ (ii) is domiciled in (amaica at the date of commencement of the proceedings+ or (iii) is resident in (amaica at the date of commencement of the proceedings+ or (b) where the proceedings relate to a relevant child, if such child is in (amaica at the date of commencement of the proceedings.

THE 'RO"ND# ON (HI!H A MARRIA'E !AN )E DI##O &ED (nder section 0 of the *atrimonial +auses ,ct there is only one ground on which one can obtain a divorce namely that the marriage has bro-en down irretrievable. This is established by proving that: 1? the parties to the marriage separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceeding the date of filing of the Petition for that decree. The +ourt must not grant a dissolution of marriage if it is not satisfied that there is no reasonable li-elihood of cohabitation being resumed. 'ections 0 and 1 of the .amaican *atrimonial +auses ,ct are almost identical to the ,ustralian Gamily ,ct of 1 =0 sections 3" and 3 . Therefore the ,ustralian case law which has interpreted those sections is very relevant.

#ection * of the Matrimonial !auses Act pro+ides :

&. (1) A petition for a decree of dissolution of marriage may be presented to the Court by either party to a marriage on the ground that the marriage has broken down irretrievably. (!) $ub)ect to subsection (#), in proceedings for a decree of dissolution of marriage the ground shall be held to have been established, and such decree shall be made, if, and only if, the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of filing of the petition for that decree.

(#) A decree of dissolution of marriage shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed .

#eparation &aving regard to section 0 of the ,ct# the main procedural point to prove on a Petition for the dissolution of marriage is that the parties have separated for a continuous period of 1F months immediately preceeding the filing of the Petition. Dhat therefore is separation within the meaning of the ,ctH 'ection 1 of the *atrimonial +auses ,ct see-s to put a meaning to the term separation as follows: Meaning of #eparation, -. (1) 'he parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. (!) 'he parties to a marriage may be held to have separated and have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. e!aration can be a unilateral Act (nder section 1>1? of the ,ct it is not necessary that both parties agree to end the cohabitation. +ohabitation can be brought to an end by the action or conduct of one of the parties only. 'ee T"e an# T"e >1 =1? ,L5 0F at 0!F 8 The fact of separation is the critical element. It can be an act by unilateral intention of one spouse that does not have to be communicated to the other spouse. , distinction must however be made between between a unilateral act simpliciter and an involuntary one. Dhile the ,ct loo-s at the fact of separation rather than the intention behind it #if there is evidence of a contrary intention# that is an intention to -eep the marriage on foot inspite of a physical separation# then separation will not legally come into e:istence so as to put an end to the marital relationship. 'ee Whiteoak v. Whiteoak /1 "62 GL+ 6@"!= @ a case in which the husband was imprisoned# after imprisonment the wife continued to visit him in prison but ceased to do so a couple months after and communicated her intention to him to end the marriage relationship.

e!aration an# till $iving un#er the same roof (nder section 1>F? the parties can be separated in law notwithstanding that they continue to reside under the same roof and continue to provide household services for each other. Dhat is important is that the main incidents of the consortium vitae has ended. ;ne such element that is sometimes alleged as negating the e:istence or continuation of separation is se:ual intercourse. Saunders v. Saunders >1 =1? 1F ,L5 F"!#F"1 8 F"= Cowans . came to the conclusion of acts of se:ual intercourse on an isolated or causal basis being consistent with living separately and apart. 'ee also Spanos and Spanos >1 "6? 1 Gam L5 !30 . 'ee AB v. CD >77 F66! &+ F=# +arilaw# 7arbados? 'ee also the judgment of 'y-es . in Alva Melford Heron Muir v. Maureen Veronica Heron Muir >.amaica 'upreme +ourt# delivered ;ctober F1#F660?. .ustice 'y-es analyIed the decision in !ave" v. !ave" (1976) 10 ALR 259 and concluded thus at paragraph 13 of the judgment:
What the Court is saying is that living under the same roof is prima facie proof that the parties have not separated. It simply raises (I ish not to use the or! presumption ith all o" hat that entails an! to a#oi! arguments a$out re$utting the presumption an! presumption $e%oming %on%lusi#e i" not re$utte! an! so on) the pro$a$ility& that the %ouple ha#e not separate! an! li#ing apart' I oul! not go as "ar as saying that %orro$oration is re(uire! an! I oul! not so !e%i!e in this %ase espe%ially $e%ause (1) the point as not e#en hinte! at in the su$missions ma!e (en! o" page 6) $e"ore me an! (2) there is the !anger o" en%rusting the statute ith i!eas an! %on%epts that the legislature seeme! to ha#e !eli$erately a#oi!e!' )his is not to say that the *ull Court has not raise! a #ali! point' What I understand the Court to be saying, hich is good sense, is that here it is being alleged that parties have separated but still under the same roof the evidence should be e!amined carefully. )he nee! "or %are"ul e+amination is highlighte! here the petition is %onteste! an! the party opposing the petition is saying that the parties ha#e not separate! an! li#e! separate an! apart "or the t el#e months' "he evidence that the parties have separated and lived separate and apart for the re#uired period though under the same roof should be clear, cogent and une#uivocal.

'ee anche% v. anche% F66 G*+, fam 1F0 for an application of the principles in !ave" v.!ave". Judgment in Sanchez available on www.austlii.com website.

Separated and thereafter lived separate and apart for a continuous period of not less than twelve months immediately preceding the date of filing of the petition for that decree. In order to establish that the full 1F months period of separation has run its course before the applicant can become entitled to a decree of dissolution of marriage it is important to have regard to: a? The date on which separation is alleged to have occurred b? The date on which the application is filed. In ,ustralian case of &n the Marriage of To## 'No.2( F0 GL5 F16# F1F Datson . held:
'hree concepts re.uire examination/ a) separation, (b)living separately and apart, and (c)resumption of cohabitation. "n my view separation means more than physical separation 0 it involves the destruction of the marital relationship ( the consortium vitae). $eparation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on the intention+ or alternatively, act as if the marital relationship has been severed. 1hat comprises the marital relationship for each couple will vary ,2arriage involves many elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. 1hen it is asserted that a separation has ta en place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. 1hether there has been a separation will be a .uestion of fact to be determined in each case. As to the second element, that of living separately and apart, this element is present and continues to be present unless there is a substantial resumption of the marital state. Casual acts of intercourse do not constitute an interruption of separation. An agreement to resume cohabitation which is not carried out is insufficient. (ust as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or ac.uiescence) and action thereon are necessary ingredients in the termination of separation. As to the third element resumption of cohabitation , once the necessary period of separation has been established, the decree for dissolution should be made unless the court is satisfied that there is a reasonable li elihood of cohabitation being resumed. 'he onus of establishing such li elihood is on the spouse who asserts it . 2ore than the li ely resumption of some elements of the marital relationships must be shown 0resumption of cohabitation must be shown

to be li ely 0that is a bilateral intention on the part of both spouses to resume living together.

)he approa%h o" Watson , in )o!!-s %ase as appro#e! $y the *ull Court o" the *amily Court o" Australia in avey v. avey (1976) 10 ALR 259' In this %ase the Court "o%use! parti%ularly on the element in the separation hi%h in!i%ates the mental $rea. $et een the parties relationship' )hat su%h mental element is a matter o" signi"i%an%e is sho n $y the role hi%h the li.elihoo! o" a resumption o" %oha$itation has to play in the la o" !i#or%e' )he *amily Court in avey v. avey also a!!e! to the %he%.list in !odd and !odd ("o.#) regar!ing e#i!en%ing %onsortium the /nurture an! support o" the %hil!ren o" the marriage0 Also the "ull Court in avey v. avey stresse! that to as%ertain hether in any parti%ular marriage a $rea.!o n ha! o%%urre!& it as not enough to go to a me%hani%al %he%.list& $ut the signi"i%an%e o" the #arious items in that list to the parti%ular persons in the light o" their li"estyles !uring the marriage as an ongoing relationship must $e %onsi!ere!' 1ee avey v. avey at page 262'
3 1e also agree with the statement in !odd$s case that 3what compromises the marital relationship for each couple will vary."t is for this reason why it is difficult to formulate a satisfactory test in cases where the parties live under one roof. As section 45 is concerned with the marriage of the parties ,it is the content of their marital relationship which must be examined, not a definition of what a marital relationship ought to include. 'his of course does not mean that the various statements about the content of the marital relationship are useless. 'hey do provide valuable chec list in each case, but they cannot be applied mechanically. "f, during the marriage the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship, then that aspect of their life may be of little importance in determining whether they have separated. 'he constituent elements of the marital relationship was referred to in 'odd6s case in these words (19%-) 9 A78 1,1 at 4,#/ 2arriage involves many elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the evidence of the marriage by both spouses in public and private relationships.9 'o this general statement wewish toad but one phrase,9 the nuture and support of the children of the marriage9. 'his is probably implicit in the various cases to which !odd$s case referred but in view of the provisions of the ss.4#,-1 and %1 of the :amily 7aw Act,it is important that it be made explicit.

"n %ussell v. %ussell (19%-) 9 A78 1,# at 14& and ;ractice 8eporter %&, 1%4 (acobs ( said 3 the recognition by society of rights and duties of husband and wife in respect of the children of their marriage and of the relationship f the children of the marriage to theor parents springing from their status as children of the marriage lies not on the periphery but at the center of the social institution of marriage.9 "f the parties to the marriage say that they have stayed together for the sa e of the children then they are saying that they are endeavouring to fulfill the responsibilities that the law<..casts upon them both. 'he relative significance of this will vary from marriage to marriage, but it is always an important element of the marriage'0

Summary of the rinciples on Separation ,usti%e 1y.es in Alva Melford Heron Muir v. Maureen Veronica Heron Muir summariIed the principles on separation at paragraph 11 of his judgment as follows:
a' /the e+pression 3separate! an! therea"ter li#e! separately an! apart3 means a se#ering o" the %onsortium #itae' )he se#eran%e has t o %omponents& namely& a physi%al separation an! an intention on the part o" at least one o" the parties to terminate the marriage relationship' 1eparation %an only o%%ur i" one or $oth spouses inten! to se#er the marital $on! an! a%t upon that intention4 there %an $e a %essation o" %oha$itation or se#eran%e o" the marriage relationship e#en i" the parties %ontinue to li#e in the same premises an! pro#i!e some househol! ser#i%es to the other' Con#ersely& a$sen%e "rom $eing un!er the same roo" is not su""i%ient' )he a$sen%e o" per"orming some househol! ser#i%es is not ne%essarily %on%lusi#e that there is an intention to se#er the marriage $on!' Li.e ise the pro#ision o" househol! ser#i%es is not ne%essarily %on%lusi#e that there as either no separation or that the separation has en!e!' )he %riti%al thing is to see i" one or $oth parties ha#e separate! "rom a state o" a""airs (i'e' the marriage)4 there may $e instan%es here the !ate o" separation may $e !i""i%ult to esta$lish $e%ause the parties simply !ri"t apart ithout any or!s passing (en! o" page 7) $et een them $ut e#en in this situation the re(uirements o" se%tion 5(2) must $e met4 hat amounts to a separation ill #ary "rom %ouple to %ouple $e%ause the Court is not %on%erne! a$out generi% marriages $ut the parti%ular marriage $e"ore the Court' 5espite this& the 3%he%.list3 o" hat is %onsi!ere! to $e the in!i%ia o" marriage may pro#i!e some assistan%e hen the spe%i"i% marriage is $eing e+amine!' 6o e#er& the 7u!ge shoul! not apply the 3%he%.list3 in a me%hani%al manner4

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In trying to !etermine hether there has $een a se#ering o" the %onsortium #itae& it is legitimate to loo. at the $eha#iour o" the parties $e"ore an! !uring the perio! o" allege! separation to see i" the physi%al an! mental elements are satis"ie!' )he e+pression 3$ro.en !o n irretrie#a$ly8 is sel" e+planatory' )o my min!& it means a state o" a""airs in hi%h it %an $e sai! that the %ouple no longer "un%tion as hus$an! an! i"e' A marriage is irretrie#a$ly $ro.en !o n here there has $een a se#eran%e o" the %onsortium #itae ith no intention $y $oth parties to resume the marriage' )he separation an! perio! o" separation re"erre! to in se%tion 5 (2) o" the 9CA is not a part o" the !e"inition o" 3$ro.en !o n irretrie#a$ly3 $ut is e#i!ential' )he separation an! %ontinue! separation is usually the $est e#i!en%e o" the $rea.!o n o" the marriage' *inally& hen the 9CA spea.s o" 3not less than t el#e months imme!iately pre%e!ing the !ate o" "iling o" the petition "or that !e%ree3 the %al%ulation e+%lu!es the !ate o" separation (see :ay& ,' in In the 9arriage o" ;o<ino#i% 99 *'L'R' 155 an! se%tion = o" the Interpretation A%t (,am))'0

%easonable &ikelihood of Cohabitation 'eing %esumed

A !e%ree "or !issolution o" marriage ill not $e grante! i" the %ourt is satis"ie! that there is a reasona$le li.elihoo! o" %oha$itation $eing resume!' )he pro#ision is %ast in the "orm o" a pro#iso' As su%h there is no !uty upon the %ourt to in(uire hether or not the li.elihoo! e+its&$ut it shall $e "or a party so alleging to pro#e it' I$onomou and I$onomou (1976) 1*am L> 17' )his is usually (uite !i""i%ult to pro#e an! ill re(uire e#i!en%e o" an intention on the part o" one spouse to resume %oha$itation an! e(ui#o%al e#i!en%e as to the intention o" the other' If cohabitation has in fact been resumed& the %onsi!erations raise! $y Watson , in "odd and "odd %o.& as outline! a$o#e $e%omes rele#ant? As to the third element resumption of cohabitation , once the necessary period of separation has been established, the decree for dissolution should be made unless the court is satisfied that there is a reasonable li elihood of cohabitation being resumed. !he onus of establishing such likelihood is on the spouse who asserts it. 2ore than the li ely resumption of some elements of the marital relationships must be shown 0resumption of cohabitation must be shown to be li ely 0that is a bilateral intention on the part of both spouses to resume living together.

Interruption to Period of #eparation

Section ' of the Matrimonial Causes Act ( )ffect of resumption of cohabitation.

%. (1) :or the purposes of proceedings for a decree of dissolution of marriage, in calculating any period for which the parties have been living separately and apart, and in considering whether such period has been continuous, no account shall be ta en of any one period (not exceeding three months) during which the parties resumed cohabitation with a view to reconciliation. (!) :or the purpose of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the Court, was not substantial.

1e%tion 7 o" the 9atrimonial Causes A%t is o"ten re"erre! to as the /.iss an! ma.e up0 %lause' It as !esigne! to promote re%on%iliation an! to en%ourage separate! spouses to resume %oha$itation' )he e""e%t o" se%tion 7(1) is that here the parties resume %oha$itation ith a #ie to re%on%ile the marital relationship& pro#i!e! that %oha$itation as not resume! "or a perio! greater than 2 months no a%%ount ill $e ta.en o" the three month perio!' 1o that i" the parties separate! on the 1st o" ,anuary 2010 an! resume! %oha$itation ith a #ie to re%on%iling on the 1st o" April& 2010 to the 20th t o" ,une 2010' )hey ha#e li#e! separate an! apart sin%e ,une 20 th 2010 to 9ar%h 21st 2011' In %al%ulating the 12 month perio! a%%ount ill $e ta.en o" the separation up to the !ate o" the re%on%iliation an! separation a"ter the !ate o" the re%on%iliation there"ore the 12month perio! o" separation oul! $e %al%ulate! as "ollo s 1) ,anuary 1& 2010 to 9ar%h 21st 2010 @ 2mths 2) ,uly 1&2010 to 9ar%h 21st 2011 @ 9 months >o a%%ount is ta.en o" the 2 months perio! o" re%on%iliation in the %al%ulation o" the 12 months $ut it !oes not /$rea.0 the separation in the sense that here the parties !o not re%on%ile a"ter the resumption o" %oha$itation they ha#e to start the 12 month perio! a"resh' An!er se%tion 7(2) there"ore the perio! o" %oha$itation ill not $e !eeme! to ha#e $een at an en! i" the interruption in the %oha$itation as not su$stantial'

Restriction on petitions prior to the e-piration of t.o /01 years of marriage

5. (1) =o petition for a decree of dissolution of marriage shall be presented, without the leave of the Court, unless at the date of the presentation of the petition two years have passed since the date of the marriage. (!) A (udge of the Court may, upon application being made to him in accordance with rules of court, grant leave for a petition to be presented before two years have passed if he is satisfied that one of the parties has with the assistance of an approved marriage counsellor attempted a reconciliation and there are special circumstances that would )ustify the hearing of the petition. (#) "f it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition pursuant to this section by any misrepresentation or concealment of the nature of the case, then the Court may * (a) if it grants a decree nisi, stipulate that the decree be sub)ect to the condition that no application to ma e the decree absolute shall be made until after the expiration of two years from the date of the marriage+ or (b) dismiss the petition, but without pre)udice to any petition which may be presented after the expiration of the said two years upon the same, or substantially the same, facts as those proved in support of the petition so dismissed. (4) =othing in subsection (1) shall be deemed to prohibit the presentation of a petition based upon matters which have occurred before the expiration of two years from the date of the marriage. #ection 23 of the Matrimonial !auses Act 4 Rescission of decree on reconciliation . 15. =otwithstanding anything contained in this Act, where a decree nisi has been made in proceedings for a decree of dissolution of marriage, the Court may, on the application of a party to the marriage at any time before the decree becomes absolute, rescind the decree if the Court is satisfied that the parties have become reconciled.

#ection 25 of the Matrimonial !auses Act4, Rescission of decree for miscarriage of 6ustice, 19' Where a !e%ree nisi has $een ma!e& $ut has not $e%ome a$solute& the Court may& on the appli%ation o" a party to the pro%ee!ings or on the inter#ention o" the Attorney@Beneral& i" it is satis"ie! that there has $een a mis%arriage o" 7usti%e $y reason o" "rau!& per7ury& suppression o"

e#i!en%e or o" any other %ir%umstan%es& res%in! the !e%ree an!& i" it thin.s "it& or!er the rehearing o" the pro%ee!ings'

THE DIVORCE PROCESS )he pro%ess "or the !issolution o" marriages is a t o stage one namely? 1) the *ecree %isi C this is the "irst or!er in the pro%ess an! !oes not mean that the parties are !i#or%e!' 1ee se%tion 16 o" the 9atrimonial Causes A%t hi%h pro#i!es / a !e%ree o" !issolution or nullity o" marriage un!er this A%t shall in the "irst instan%e $e a !e%ree nisi'0

2) the *ecree Absolute C this is the "inal or!er in the pro%ess an! %ompletely !issol#es the marriage' 1ee section 1' of the Matrimonial Causes Act hi%h pro#i!es that 1%. (1) A decree of dissolution or nullity of marriage shall not be made absolute until after the expiration of si( weeks from the date of the decree nisi, unless the Court by general or special order from time to time fixes a shorter time. (!) An application for a decree nisi to be made absolute may be made by either party to the marriage' >ote also that un!er se%tion 27 prior to the grant o" a !e%ree a$solute or nullity o" marriage the Court must $e satis"ie! that a!e(uate arrangements ha#e $een ma!e "or a %hil! ho is un!er the age o" 1= C rele#ant %hil!' Section &' of the Matrimonial Causes Act pro#i!es as "ollo s? !%. (1) =otwithstanding anything in this Act but sub)ect to subsection (!), the Court shall not ma e a decree for the dissolution or nullity of marriage in any proceedings unless it is satisfied as respects every relevant child who is under eighteen that * (a) arrangements for his care and upbringing have been made and are satisfactory or are the best that can be devised in the circumstances+ or

(b) it is impracticable for the party or parties appearing before the Court to ma e any such arrangements. (!) 'he Court may, if it thin s fit, proceed without observing the re.uirements of subsection (1) if * (a) it appears that there are circumstances ma ing it desirable that the decree should be made absolute or should be made, as the case may be, without delay+ and (b) the Court has obtained a satisfactory underta ing from either or both of the parties to bring the .uestion of the arrangements for the children before the Court within a specified time. $ee &a )eorgia et al v.'ailey (2 !,,5 $C # (Carilaw citation) and Sebastian v. Sebastian (2 199# CA !& (Carilaw Citation) in respe%t o" se%tion 27 o" the 9atrimonial Causes A%t !he arrangements for a relevant child of the marriage is usually in relation to* +) custody #) care , control-residence .) access /) maintenance 0) education 1tems +2/ will be dealt with in other units in more depth. Apon a Detition "or the 5issolution o" a 9arriage it is important to remem$er that the Court is primarily %on%erne! a$out the el"are o" all relevant children to the marriage' )he 9atrimonial Causes A%t !e"ines a relevant child in the interpretation se%tion as? a) a %hil! o" $oth parties to the marriage in (uestion or $) a %hil! o" one party to the marriage ho has $een a%%epte! as one o" the "amily $y the other party'

An! in paragraphs (a) an! ($) o" this !e"inition /%hil!0 in%lu!es a!opte! %hil! an! %hil! o" a #oi! marriage' En the issue o" hether the %hil! has $een a%%epte! as one o" the "amily see? 3dams v. 3dams ,9 200= 1C77 (Carila 4i(on v.4i(on F1967G 2 All HR 659 %itation)

ORDER# !ON!ERNIN' THE #PO"#E AND RE E&ANT !HI D O% THE MARRIA'E PENDIN' AND A%TER DI&OR!E PRO!EEDIN'# An!er 1e%tion 22 o" the 9atrimonial Causes A%t as amen!e! $y se%tion 2= o" the 9aintenan%e A%t& the Court may ma.e su%h or!er "or the %usto!y& maintenan%e an! e!u%ation o" any rele#ant %hil! or "or the maintenan%e o" a spouse in pro%ee!ings "or !issolution o" marriage $e"ore or a"ter the !e%ree a$solute is grante!' )hese pro%ee!ings "or %usto!y an! maintenan%e may $e %ommen%e! a"ter the presentation o" the Detition "or !issolution o" marriage' )he or!ers "or maintenan%e ma!e $y the Court in respe%t o" the maintenan%e o" any %hil! or spouse must $e in a%%or!an%e ith the pro#isions o" the 9aintenan%e A%t'(1ee se%tion 22 (2) $elo ) 1ee se%tion 22 o" the A%t ho e#er "or hen the or!ers are to ta.e e""e%t' &+. Custody, maintenance and education
!#. (1) 'he Court may ma e such order as it thin s )ust for the custody, maintenance and education of any relevant child or for the maintenance of a spouse. (a) in any proceedings under section 1,, or in any proceedings for dissolution or nullity of marriage before, by or after the final decree5 (b) where such proceedings are dismissed after the beginning of the trial, either forth with or within a reasonable period after the dismissal, and in any case in which the Court has power by virtue of paragraph (a) to ma e an order in respect of a child the Court may, if it thin s fit, direct that proper proceedings be ta en for placing the child under the protection of the Court. (#) 3n order under subsection (+) for the maintenance and education of any relevant child or for the maintenance of a spouse shall be in accordance with the provisions of the 6aintenance 3ct. (#) ;arties to a marriage or two persons in contemplation of their marriage to each other may,

for the purpose of facilitating the settlement of their affairs under this section with respect to the issue of maintenance, ma e such maintenance agreement as they thin fit. (4) :or the purposes of this ;art, a maintenance agreement means an agreement that* (a) ma es provision in respect of the support rights and obligations of the parties with respect to each other or any child that either party has an obligation to maintain under the 2aintenance Act+ and (b) includes provisions in respect of* (i) financial matters+ (ii) the right to direct the education and moral training of their children+ or (iii) any other matter in the settlement of the affairs of the spouses, including an agreement that varies an earlier maintenance agreement. (0) !he provisions of sections #/(.) to (++), #/(+.) and #0 of the 6aintenance 3ct shall have effect, with the necessary modifications, to maintenance agreements made under this section.7

,-*)-S .,- .I%A%CIA/ 0-,1ISI,% .,- S0,2S) *2-I%3 *I1,-C) 0-,C))*I%3S 4gross or annual sum5
An!er se%tion 20 o" the 9atrimonial Causes A%t& in !issolution o" 9arriages pro%ee!ings the %ourt on the appli%ation o" a !epen!ent spouse may ma.e an or!er "or one spouse re"erre! to in the A%t as the %ontri$uting spouse to pay to the !epen!ent spouse either a gross sum o" money or su%h annual sum not e+%ee!ing the li"e o" the !epen!ent spouse ha#ing regar! to the means o" the !epen!ent spouse& the a$ility o" the %ontri$uting spouse an! to all the %ir%umstan%es o" the %ase' Again the Court must ha#e regar! to the pro#isions o" the 9aintenan%e A%t se%tion 1I in ma.ing the or!ers' 1ee se%tion 22 as to hen or!er is to ta.e e""e%t'
$ection !, of the 2atrimonial Causes Act provides >(1) ?n any decree for dissolution of marriage, the Court may, if it thin s fit* (a) order a spouse (hereinafter in this section referred to as the contributing spouse) to secure to the other spouse (hereinafter in this section referred to as the dependant spouse), to the satisfaction of the Court2 (i) such gross sum of money5 or

(ii) such annual sum of money for any term not e(ceeding the life of the dependant spouse, as having regard to the means of the dependant spouse, the ability of the contributing spouse and to all the circumstances of the case, the Court thinks reasonable5 (b) for the purposes of paragraph (a), refer the matter to any attorney*at*law to settle and approve a proper instrument to be executed by all necessary parties, and may order the costs of such instrument to be paid by the parties, or such of them as the Court thin s fit+ and (c) where the matter is referred under paragraph (b), suspend the pronouncement of the decree until the instrument has been duly executed, and on any petition for dissolution of marriage the Court shall have power to ma e interim orders for such payments of money to the dependant spouse as the Court thin s reasonable.9 + (#) 1n any such case as aforesaid the Court may, if it thinks fit, by order, either in addition to or instead of an order under subsection (+), direct the contributing spouse to pay to the
dependant spouse during their 6oint lives such monthly or ee$ly sum for the maintenance and support of the dependant as the Court may think reasonable.

(#) "f, after any such order has been made, the Court is satisfied that the means of either or both of the parties have changed, the Court may, if it thin s fit, discharge or modify the order, or temporarily suspend the order as to the whole or any part of the money ordered to be paid, and subse.uently revive it wholly or in part as the Court thin s fit. (/) 3n order under subsection (+)(a) or (#) shall have regard to the matters specified in section +/(/) of the 6aintenance 3ct.75

Case &aw on Spousal 6aintenance ending 4ivorce roceedings 1ee 'arr 86ei9erink v.6ei9erink ,9 !,,! $C -% (Carilaw Citation) 0application by the wife under section !, of the 2atrimonial Causes Act prior to the amendments by section !5 of the 2aintenance Act.

Surdeen v. Surdeen 7M &88' SC 9& 4Carila citation5 :appli%ations "or spousal maintenan%e %an
only $e ma!e un!er the 9atrimonial Causes A%t in the 1upreme Court pen!ing !i#or%e pro%ee!ings'

*arby v. *arby ,9 2007 1C 59 (Carila ;err v.;err ,9 2006 1C 6= (Carila

%itation)

Citation) Citation) C!i#or%e !oes not o" itsel" $ring an

7arrett v. 7arrett ,9 2000 CA 22 (Carila en! to maintenan%e agreement

1alentine v. 1alentine (1992) ,LR 25 %ite! $y ;roo. , in ;err v. ;err

Maragh v. Maragh ,9 2009 1C 15 ( Carila Citation) Case a"ter the re%ent amen!ments to the 9atrimonial Causes A%t $y the 9aintenan%e A%t' 0rince Campbell v. Campbell ,9 200= 1C 12 (Carila Citation)

RECOGNITION OF FOREIGN DECREES 1ee @ 1e%tion 2I o" the 9atrimonial Causes A%t @

Re%ognition o" "oreign !e%rees' 1ee :oan ;unice 6cCalla v. :ohn 3rchbald 6cCalla & 1upreme Court o" ,amai%a& !eli#ere! 1eptem$er 26&2006& ;roo.s ,'