An Act of Parliament to amend the Marriage Act, 2014 to provide for the dissolution of marriage by mutual consent.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
|---|---|---|
Clause 2 Amendment of section 2 of No. 4 of 2014 | Section 2 of the Marriage Act, 2014 (“the principal Act”) is amended by inserting the following new definition in the proper alphabetical sequence: “mutual separation” means the agreement by the spouses to live separately as husband and wife whether they live under the same roof or not. | The Marriage Act, 2014 as it is currently does not contain an avenue for mutual separation by parties to a marriage. What section 66 of the Act contemplates is separation by an order of the Court once a party to the marriage petitions for separation. Therefore, Mutual separation provided for under this amendment minimizes conflict between the spouses. Since both parties agree about ending the marriage, there is less likelihood of confrontations and hostile interactions. Secondly, when children are involved, a mutual separation provides a more stable and less disruptive environment for the children. Co-parenting and decision-making processes are more likely to be cooperative, which benefits the emotional well-being of the children. |
Clause 3 Insertion of new section 75A in No. 4 of 2014 | The principal Act is amended by inserting the following new section immediately after section 75: 75A. (1) The parties to a marriage celebrated under Part III, IV, V and VI may jointly petition the court for a decree of divorce by mutual consent on the ground that: a. the marriage has irretrievably broken down; b. the parties have mutually separated for at least one year immediately preceding the date of presentation of the petition; and c. the parties have mutually agreed to dissolve the marriage. (2) The court may grant a decree of divorce by mutual consent under subsection (1) if: a. the petition is made after at least one year of the celebration of the marriage; b. the parties jointly present the petition; c. both parties freely give their consent to the divorce in writing; and d. both parties are present in person at the hearing of the petition. (3) Upon satisfaction of the court that the averments made in the petition are true, the court shall grant a decree of divorce. (4) Any party to the petition may, by filing a notice of motion, withdraw the petition any time before a decree or divorce is granted. (5) The court may, on application of a party, nullify a decree of divorce granted under subsection (1) on the grounds that the consent was obtained by: a.coercion; b. fraud; or c. undue influence. (6) The innocent party is entitled to damages where the court nullifies a decree of divorce under subsection (5). (7) Parties to a marriage dissolved under this section shall be deemed to have been divorced with effect from the date the decree absolute is granted by the court. (8) The Rules Committee established under the provisions of the civil Procedure Act may make rules regulating any matter of practice or procedure under this section. | This is a welcome proposal. Divorce by mutual consent will apply to Christian, Customary, Civil, and Hindu marriages. This proposal will not apply to Islamic marriages. Divorce by mutual consent has the following advantages: a. it allows both spouses to work together to reach an agreement, which reduces conflict and emotional stress. By avoiding contentious legal battles, a couple can maintain a more amicable relationship during and after the divorce; b. it’s cost effective as the couple will save on legal fees, court costs and other related expenses attendant to the prosecution of divorce proceedings; c. since there is no dispute to be resolved by the court, divorce by mutual consent tends to be a faster process than litigation; and d. the couple has more control over the divorce settlement, allowing them to tailor the agreement to suit their unique circumstances, rather than have a Court make decisions for them. |
Sub-clause (6) is a welcome proposal. Payment of damages sends a clear message to the general public that even though divorce can be mutual courts will not tolerate consent that has been unlawfully obtained. This will deter potential wrongdoers from violating the provisions of this sub-clause. |
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For sub-clause (7), divorce by mutual consent will have the same effect as a divorce decree issued by a court. |
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In addition to divorce by mutual consent, we propose the addition of a clause providing for decree for divorce arising out of mediation proceedings as a mode of divorce. As a form of Alternative Dispute Resolution, divorce arising out of mediation proceedings is recognized by article 159 (2) (c) of the Constitution. The proposal would be for a Court to refer a couple to mediation arising out of divorce proceedings for possible settlement. Mediation arising out of divorce proceedings has the following benefits: a. it will decongest the backlog of cases in courts; b. it’s a confidential process which encourages open and honest communication between the couple, as they can openly discuss their concerns without fear of public exposure; c. it allows the couple to work at their own pace, rather than being subject to court schedules and delays, resulting in a quicker resolution of the divorce; d. it allows for creative solutions that are specific to the couple’s situation. Since the couple is actively involved in crafting the settlement, the outcomes are tailored to their unique needs and circumstances; and e. it preserves the relationship between the parties. This makes co-parenting and interactions smoother for the well-being of the children. |