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Divorce law - A case for review

KGOSIETSILE NGAKAAGAE
I sat in court the order day awaiting my matter when a divorce matter was called. Just one of the many that make a substantial fraction of the High Court workload. Except, it was opposed. The majority are not resisted.

Wifey was resisting hubby’s decision to end the union. They had been living apart for a short while, by mutual agreement. It may well have been the husband’s strategy for a soft exit because he filed for divorce from the safety of distance.

The lady was a self-actor. When she stood up, there were hushed conversations beneath the gowns. She was beautiful. Half the bar would have assisted her for free.

I have encountered similar situations where a party comes to the office and says, “I will not divorce. I did not marry to divorce. Resist this divorce.” Some would argue that they are saving their spouses from Satan or from self-destruction. You start with trying to understand where the marriage is, whether pastoral or other professional counselling has been received and its possible future trajectory. On that score, you rely on your professional experience, and a bit of common sense. Where an opportunity for reconciling the parties exists, you try.

In the majority of cases you reach the conclusion that it is over, at least on the objective facts. Often, you have to tell that to someone who believes that it is not over until it is over. In the example under discussion, the judge asked the lady if she expects him to order the man back home. The question spoke to the practical (im)possibility of forcing someone who didn’t want to stay with her to stay with her.

He was in essence, saying that a marital relationship was too personal to be anchored on a court order. It required the willful consent, surrender and participation of both parties. In the olden days society set the norms for marital conduct. Nowadays, families negotiate own constitutions.

Under our laws, divorce is, mainly, fault-based as opposed to failure-based. Except in a minority of circumstances, you have to prove wrongdoing on the part of the other person in order to get a divorce order. You cannot obtain it by simply saying that you no longer love someone, that you have irreconcilable differences, that you grown distant or that you have developed an attraction for a same-sex relationship. The result is chaos. People lie and defame others to get divorce orders. Fights ensue.

Some colleagues suggest that divorce should be failure based. That one should only prove that the marital union has failed to work without having to prove that their spouse is a bad person or that there had been wrongdoing on their part. They say that it is even more unreasonable, where

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parties agree that their marriage has failed, for the State to demand justification for the failure as a precondition for divorce.

That the State should only be concerned with anciliary issues of marital property and the welfare of the minor children and that marriage should not be reduced to an ordinary contract capable of enforcement by the impersonal remedy of specific performance.

There is some reason in the proposition for accountability. Marriage has far reaching consequences on the personal status and social relations of the parties. It even has consequences on their legal decisions and economic lives. To promote unilateralism within such a context is to be unmindful of the emotional, legal and social implications of the institution.

Some judges would readily grant a divorce order, however light the reasons, on the realisation that the marriage has no future. I have heard one remark that when you force a person to live with someone they don’t want to live with and may in fact no longer like, you are setting up the stage for abuse at best and for murder, at worst.  A declined divorce case may well come back as a murder case.

I did a case once. We resisted a divorce for about two years. She would not budge. As the acrimony heightened and the costs escalated, reality dawned on her that the resistance was actually pushing her even further away from her obstinate husband. She eventually let go and the divorce order was granted. It was a bitter pill, but a necessary one.

About a year passed before I saw her again. She had come to tell me she was getting married and that she had found new love. I cannot say that people should not resist divorces where they consider it warranted. Marriage like divorce are personal decisions. Some resist for religious reasons. Some resist because the divorce grounds are false and spiteful. 

I simply say that society needs some commence dialogue on the law of divorce. It is too accusatorial and its application results in more hurt than healing. It cannot be demanded, justifiably, that people who come to court saying that they no longer wish to stay together should be refused that choice on the simple reason that they are unwilling to accuse each other.

Parties suffer too much hurt and expense justifying to society, why they should be allowed to separate. We must instead focus on training more counsellors and assisting couples access free counselling to save their marriages. That’s   society’s proper role.



Chief On Friday

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