Unpacking Divorce Proceedings

A civil marriage (registered under Marriage Act Chapter 5:11) is dissolved by the High Court through a process called a divorce. The Matrimonial Causes Act [Chapter 5:13] governs divorces. A divorce process involves a lot of stages from the initial stage of summons up to the stage of the court granting a court order for divorce. This article shall primarily focus on permissible grounds for divorce, factors considered in distribution or division of assets during a divorce and maintenance.

Grounds for divorce

Section 4 of the Matrimonial Causes Act provides for the grounds upon which a civil marriage can be dissolved. The grounds are irretrievable breakdown of the marriage and incurable mental illness or continuous unconsciousness of one parties to the marriage. On the ground of irretrievable breakdown of the marriage the court grants an order for divorce after being satisfied that the marriage relationship between the parties has broken down to such an extent that there is no prospect of restoration of a normal marriage relationship between them. The court considers the following as provided for in Section 5 of the Act

1. The court consider that parties have not stayed together as husband and wife for a period of at least twelve (12) months before the commencement of the divorce action

• The defendant has committed adultery which the plaintiff regards as incompatible with the continuance of a normal marriage relationship

• Defendant has been sentenced to imprisonment for a period of at least fifteen (15) years, has been declared a habitual criminal, sentenced to extended imprisonment or has been detained in prison for a continuous or uninterrupted period which amount to five (5) years in the aggregate, within ten years before the commencement of the divorce

• The defendant has during the subsistence of the marriage treated plaintiff with such cruelty, mental or otherwise or habitually subject himself or herself to intoxicating liquor or drugs to the extent that it is incompatible with the continuance of a normal relationship.

Factors Considered in division of assets during a divorce and maintenance orders

The factors considered by the court in distribution of property during a divorce are provided for in Section 7 of the Matrimonial Causes Act [Chapter 5:13]. By taking these factors into consideration the court endeavours as far as is reasonable and practicable to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses. This is in line with Section 25 of the Constitution which provides that in the event of dissolution of marriage whether through death or divorce provisions must be made for the necessary protection of any children and spouses.

In relation to property distribution the court can make orders in relation to the division and distribution of property including an order for an asset to be transferred from one spouse to another. The court may also order any other person holding property which forms part of the property subject to the divorce to make a payment or transfer of such property or confer on any trustees property subject to divorce. With regards to maintenance orders the court may make an order for payment of maintenance whether by way of a lump sum or by way of periodical payment to the spouse or the child.

The factors considered in distribution of property and maintenance orders are as follows

1. The income –earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future
2. the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
3. the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;
4. the age and physical and mental condition of each spouse and child;
5. the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
6. the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;
7. the duration of the marriage;

Nowadays courts are reluctant in awarding orders for spousal maintenance during divorce unlike with maintenance of minor children which is a must. On the aspect of financial contribution to the acquisition of property, the court as highlighted above also considers indirect contribution made by a spouse through creating a family, taking care of the family and other domestic duties. This aspect applies to women in most cases. In the case of Mhora vs Mhora SC-89-20 the Supreme Court awarded 50% share to a 65-year-old woman who had not contributed much financially to the acquisition of a house but had devoted her life to taking care of his husband and family including children form the previous marriage of the husband. She had left her job to be a full time house wife to provide support for her husband and family. However, the percentage in such circumstances   varies and the court considers the facts of each case as presented.

It is also important to note that in terms of Section 7 (3) of the Matrimonial Causes Act there are certain properties that cannot be subject to distribution during divorce. These are properties acquired by a spouse whether before or during the marriage by way of an inheritance, properties intended to be held personally by a spouse in accordance with any custom or in any manner which have a particular sentimental value to the spouse concerned.