The Marriage Bill adopts an approach that is aimed at encouraging parties in Christian marriages to resolve their disputes and to remain in the marriage.
The bill promotes social justice and points out loudly the sanctity of marriages. The bill tends to discourage ill-advised and rushed decisions that parties tend to take when they go to the courts to dissolve the marriages.
It introduces a dimension of reconciliation as a precondition before filing a divorce petition. This is a very noble and unique feature in the marriage and divorce law. It is important to note that many marriages will clearly be salvaged by this interesting provision.
Section 74 of the Marriage Bill provides that before petitioning for divorce, parties shall have recourse to Christian instituted reconciliatory bodies which shall attempt to reconcile the parties. It is worth noting that the Act uses the word shall. This simply means that it is a mandatory requirement. The party seeking to dissolve a marriage has to satisfy the judge that efforts to reconcile have failed.
If reconciliation fails, a party may apply for divorce on the following grounds: one or more acts of adultery committed by either spouse; cruelty, whether mental or physical, inflicted by either spouse on the other or on the children, if any, of the marriage; and desertion by either spouse for at least three years immediately preceding the date of presentation of the petition.
In the case of a Christian marriage, a married person, however his or her marriage was contracted, may petition the court for a decree of separation or divorce on the ground that the marriage has irretrievably broken down.
Before deciding whether or not a marriage has irretrievably broken down, the court shall have regard to all relevant evidence regarding the conduct and circumstances of the parties, and may refuse to grant a decree where a petition is founded exclusively on the petitioner's own wrongdoing.
Any one or more of the following matters may be evidence that a marriage has irretrievably broken down—(a) one or more acts of adultery committed by either spouse;
(b) cruelty, whether mental or physical, inflicted by either spouse on the other or on the children, if any, of the marriage;
(c) willful neglect by either spouse for at least two years immediately preceding the date of presentation of the petition;
(d) separation, whether voluntary or by decree of the court, where it has continued for at least two years immediately preceding the date of filing of the petition;
(e) desertion by either spouse for at least two years immediately preceding the date of presentation of the petition;
(f) a sentence of imprisonment of the respondent expressed to be for life or for a term of seven years or more;
(g) insanity of the respondent, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the lifetime of the respondent in the light of existing medical knowledge;
(h) any other ground as may be deemed appropriate under any marriage system.
The grounds for the dissolution of marriages under the proposed marriage law have been modified to embrace the realities on the ground.
It is a development from the existing Matrimonial Causes Act in that, for example, unlike the current Act, it specifically mentions mental and physical cruelty.
The bill has introduced the dimension that marriages can be dissolved on the ground that the marriage has irretrievably broken down. Although this ground is not provided for under Section 8 of the current Matrimonial Causes Act, the courts have since developed the ground sufficiently. As such it will fit in very well in the statute.