1. Absolute Bars
2. Discretionary Bars.
If an absolute bar is found to exist then the court has no choice but to refuse to grant the divorce where a discretionary bar is proved the court may or may not grant the petition.
ABSOLUTE BARS
Section 7 of the Divorce Act provides for the absolute bars to divorce, i.e; connivance, condonation and collusion.
1. Connivance:
Connivance
is where the adultery of one spouse has been caused or has been knowingly or
recklessly permitted by the other spouse.
In such case the other spouse is an accessory to the adultery. If the court is satisfied of the evidence
that the petitioner has been an accessory or has connived at the adultery then
it has to dismiss the petition. The principles
as to what constitutes connivance were laid down in Churchman v. Churchman (1945) P
44 it was stated as follows:
“It
is the essence of connivance that it precedes the event and generally speaking
the material event is the inception of the adultery and not its reputation
although connivance at the continuous of an adulterous association may show
that the party conniving must be taken to have done so at the first. In this case it was stated that the material
event is the inception of the adultery, that is when the petitioner first knew
of the adulterous association, he must have connived for the adultery to
happen.”
Godfrey
V. Godfrey & Wall (1965):
In
this case the court held that a husband petitioner was guilty of connivance at
his wife’s adultery. The wife told the
husband that she was going to live with the co-respondent i.e. Wall. The co-respondent then came to stay at the
matrimonial home. The husband one day
after a drink or two came home and found the wife and co-respondent embracing
each other. He then told them
“if
you two want to go to bed together then why the hell don’t you”
which is exactly what the wife and Wall
proceeded to do. The next day the
petitioner turned the co-respondent out and chased him out of the home but the
wife and the co-respondent continued with the association and eventually the
wife moved out to live with the co-respondent.
When the husband petitioned for divorce on grounds of adultery the court
in refusing to grant him the decree held that he had not shown that his initial
connivance was not the effective cause of the subsequent adultery.
2. Condonation:
This
is the forgiveness of a marital offence and reconciliation between the parties
with full knowledge of all the material circumstances. Under Section 9,
adultery shall not be deemed to have been condoned unless and until conjugal
cohabitation shall have resumed.
In
the case of Henderson v. Henderson the court stated that where the wife had
committed adultery, the essence of condonation is that the husband with the
knowledge of the wife’s offence should forgive her and should confirm his
forgiveness by reinstating her as his wife.
The issue is whether this re-instatement included sexual intercourse or
conjugal cohabitation as provided for under 9 and in this particular case at
the time the matter was in court, such intercourse had not taken place. However the court pointed out the decision in
Cramp
v. Cramp (1920) P. 158 the decision in this case was that a husband who
has sexual intercourse with his wife after knowledge of her adultery must be
conclusively presumed to have condoned the offence. Mere forgiveness does not amount to
condonation. For condonation to exist
the forgiveness must be followed by cohabitation and the restoring of the offending
party to their former position as husband or wife.
In
the case of Crocker v. Crocker (1921) P. 25, where a soldier who was
serving overseas during the war, wrote to his wife offering to forgive her for
having committed adultery when he was away.
The wife accepted the offer but on his return home he changed his mind
and petitioned for divorce. It was held
that there was no condonation because there was no reinstatement.
Commission
of a further marital offence will revive condoned adultery or cruelty. That is where the respondent has committed
adultery and cruelty which is condoned by the petitioner if the respondent
commits another offence then the condoned offence will revive and the
petitioner will be entitled to a divorce on the ground of the condoned
act. Beard v. Beard (1945) 2 All ER
and Bertram
v. Bertram (1944) P. 59
3. Collusion:
This
is the presenting of a divorce petition by way of a bargain or agreement
between the parties. The reason why this
is a bar to divorce is that true facts will be hidden from the court and in
some case marital offence will be procured or pretended for the purposes of
securing a divorce.
In the case of Churchward v. Churchward the petitioner declined to divorce his wife who wanted to marry the co-respondent until she had made a settlement in favour of the children of the marriage and she agreed to do so since she wanted to be released from the marriage, deposited some amount and the petitioner then filed his petition. It was held that this amounted to collusion.
DISCRETIONARY BARS
Section
8(2) of the Divorce Act provides for the discretionary bars to divorce:
1. Unreasonable Delay in presenting or
prosecuting the petition:
Delay
that is unexplained may be fatal to a petitioner’s relief and in Johnson v.
Johnson (1903) it was stated that the reason why courts insist on steps being
taken promptly are that it is a terrible thing that people should go around and
about neither married nor unmarried possibly liable to contract fresh and
illegal matrimony and certainly exposed to the temptation to commit adultery. The court is saying that once a marital
offence has been committed then parties are in a state of limbo, they do not
discharge their usual marital obligations and the temptation to commit adultery
is there and that is why the court wants them to take steps promptly. In this case the fact that the respondent
wife had become insane and had been in an asylum for many years and that the
husband had been expecting release by her death was held to be a sufficient
answer to a plea of unreasonable delay.
In this case the wife just simply refused to die.
In Binney v. Binney, the
husband took no steps for divorce until his wife had been living with another
man for 20 years and even so only petitioned for the purpose of freeing himself
to marry another woman. It was held that
there had been culpable delay and the petition was dismissed.
2. Conducing Conduct:
This
is conduct which conduces the commission of a marital offence. Therefore
cruelty, neglect, desertion or other misconduct towards a spouse who afterwards
as a result commits a marital offence may bar the petitioner from obtaining a
divorce. In the case of Lander v. Lander (1890) and Dixon v. Dixon
(1952) classical decision where the wife refused to agree to
intercourse until husband filed for divorce and it was held that the wife was
guilty of conducing conduct.
3. Petitioner’s own Adultery:
This
receives some special treatment because in most cases the petitioner’s own
adultery is a consequence of the respondent’s conduct therefore the courts will
look at the circumstances to gauge whether that adultery will bar the
petitioner’s petition.
In
Blunt
v. Blunt the court laid down the considerations that will be taken into
account in exercising its discretion when a petitioner is guilty of adultery as
follows:
a) The position and interest of any
children of the marriage;
b) The question whether if the marriage
is not dissolved there is a prospect of reconciliation between husband and
wife;
c) The interest of the petitioner and in
particular the interests that the petitioner should be able to remarry and live
respectably;
d) The interests of the party with whom
the petitioner has been guilty of misconduct with special regard to the
prospects of future marriage;
e) The interests of the community at
large to be judged by maintaining a balance between the sanctity of marriage
and maintenance of a union which has utterly broken down.
Under
Section 37, every decree for divorce is in the first
instance a decree nisi which is not to be made absolute until after the
expiration of six months after the pronouncement of the decree. However an application can be made to expedite
the decree absolute within a shorter time when reasonable grounds are
shown. For example; where it is shown
that a child will be born illegitimate or for purposes of making financial
provisions for children of the marriage.
The
main reason why we have an intervening period of 6 months is to enable
unsuccessful respondents to appeal against the granting of the decree nisi or
for any other person to intervene to show cause why the decree should not be
made absolute.
As soon as the decree nisi is made absolute either spouse is then free to remarry which is not the case under the decree nisi and under Section 39 if a party remarries before a decree nisi is made absolute, then that marriage will be void.
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