DIVORCE (EXAMINABLE) Flashcards
decree? prov + 3 things
legal conse - 3
rule 20 of the rules of the matrimonial proceeding - 2020
decree nisi
decree absolute after 30 days of nisi
copy of divorce absolute to be given to the registrar within 30 by magistrate court.
legal consequences:
1. matrimonial property
2. custody and maintenance of children
3. spousal of maintenance
provision
decree of nullity v divorce (7 differences for nullity AND 5 things)
Judiciary separation v divorce
s.16 - MA
N V D
decree? how many
effect after decree declared ? different
grounds? different
period within which to bring? different
validity of marriage (status)? different
JS V D
can you remarry? no for JS. but yes for divorce
effect? spousal and everything yes!
grounds? one has extra but they are mostly the same
history of divorce
matrimonial causes act - has only monogamous marriages (c,c,h) which gave 3 years for dissolution but court had discretion
disollution of christian marriage - 4
dissolution of civil marriages - 5
Christian Marriage:
s.64 - reconciliation-
s.65: grounds: 5
(A) one or more acts of adultery committed by the other party;
(b) cruelty, whether mental or physical, inflicted by the other party on the
the petitioner or on the children, if any, of the marriage;
(c) desertion by either party for at least three years immediately
preceding the date of presentation of the petition;
(d) exceptional depravity by either party; or
(e) the irretrievable breakdown of the marriage.
civil marriage:
s.66 - within 3 years
grounds:
(a) adultery by the other spouse;
(b) cruelty by the other spouse;
(c) exceptional depravity by the other spouse;
(d) desertion by the other spouse for at least three years; or
(e) the irretrievable breakdown of the marriage (s.66.6 has 8)
may be referred to conciliation
may be adjourned for 6 months for various reasons
dissolution of ACL - 6 grounds
dissolution of islamic marriage- 6 grounds
dissolution of hindu marriage
ACL:
grounds- s.69 (judicial)
(a) adultery;
(b) cruelty;
(c) desertion;
(d) exceptional depravity;
(e) irretrievable breakdown of the marriage; or
(f) any valid ground under the customary law of the petitioner.
extra-judicial:
- elders resolve initiated by either spouses or relatives
- barriness not a ground as you can remarry
islamic marriage:
s.70 - grounds:
(a) the marriage has irretrievably broken down;
(b) the other party has deserted the petitioner for at least three years
before the making of the petition;
(c) the other party has converted to another religion;
(d) since the celebration of the marriage, the other party has committed
rape, sodomy, bestiality or adultery;
(e) the other party has committed cruelty on the other; and
(f) the other party has committed exceptional depravity on the other.
hindu marriage:
s,71 - governed by islamic law
s.71: resgistration must be registered by delivering a copy to the registrar.
adultery - 4 cases and 2 elements
elements: 2
1. sex
2. voluntary/ consent (Redpath v Redpath)
what to prove: maathai v maathai
1. no need to prove habit
2. circumstantial evidence is sufficient
3. opportunity + inclination ( meme v meme)
WEL V JMH
cruelty - 2 broad types
7 of them - examples
many cases!!!
mental or bodily - A v M - actual or reasonable apprehension
mental: DM v TM [case by case basis)
examples of cruelty:
1. Incest (Evans v Evans)
2. Conviction of a spouse for a criminal offence (Stanwick
v. Stanwick)
3. Constant nagging (King v King)
4. Unjustified denial of or excessive demand for sexual
intercourse (N v N)
5. Sexual transmitted diseases (Browning v Browning)
6. Failure or neglect to provide for or to maintain one’s
wife and children (Gollins v Gollins)
7. Sterilization of spouse without the consent of the other
(Bravery v Bravery)
For one to prove cruelty,
1. the alleged act or mission must be grave, weighty and substantial and above normal wear and tear of marriage life- M vM and Ghosh v Ghosh.
2. no need for intention to injure
3. matter of fact not law
desertion
5 factors
2 types of desertion
termination of desertion - 3
5 factors to be proven:
1. fact of separtion - physically
2. intention toremain permanent - may be inferred
3. lack of withdraw justification
4. no consent
5. 3 years
forms of desertion:
actual-guilty party leaves (SBS v JMN)
constructive: guilty make non-guilty to leave - (bowven v bowven)
termination of desertion:
1. return - offer
2. consensus on separation
3. decree of JS
exceptional depravity - 6 of them
- sodomy
- bestiality
- lesbianism
- sexual assault on one’s child
- excessive sexual demands
- violent & obscene language
irretrievable breakdown - 66(6)
8 of them
novelty - rec 119
THE MARRIAGE IS BEYOND RESCUING: FAILURE TO MEET THE BOP OF THE TRADITIONAL GROUND, IRREITIVERABLE IS BETTER - JMM v JMN ( failed to prove adultery and cruelty but court used IB to grant divorce)
(A) adultery
(b) a spouse is cruel to the other spouse or to any child of the marriage;
(c) a spouse willfully neglects the other spouse for at least two years
immediately preceding the date of presentation of the petition;
(d) the spouses have been separated for at least two years, whether
voluntary or by decree of the court, where it has;
(e) a spouse has deserted the other spouse or at least three years
immediately preceding the date of presentation of the petition;
(f) a spouse has been sentenced to a term of imprisonment of the for life
or for a term of seven years or more;
(g) a spouse suffers from incurable insanity, 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
life time of the respondent in the light of existing medical knowledge; or
(h) any other ground as the court may deem appropriate.
CWL v HN- recognise the inception of this novel provision
jurisdiction
standard of proof - 2 cases
burden of proof - maxim
- s.3 of MCA - magistrares resident court
SOP: zainabu v mohammed:
1. marriage is valid
2. offence
3. offence on standard
alexander v kamweru: preponderance of probability
he who alleges must prove
bars to divorce (2,,3/////1)
done away with
can be used to prove that kenya has moved from a fault based divorce system to a no-fault based divorce system
absolute bars:
- connivance - adultery is caused or has knowingly or recklessly been permitted by another spouse
- condonation - forgiveness of marital offence
- collusion - agreement
discretional bars-
1. unreasonable delay
2. conducing conduct - for marital offence
3. petitioner’s own adultery
legal consequences: 3
- spousal maintenance - s.77
- Matrimonial property rights (see Law of
Property)
tabitha nderitu v simon nderitu - transactions in marriage cannot be treated like commercial ones)
s. 6 MPA: meaning of matrimonial property.
s.7 MPA: contribution - monetary or not
s.8 MPA: of polygamy matrimonial- entitled to the first wife if acquired in that period. 2nd wife- owned by first and 2nd wife also.
s.16MPA -spouses are to share equal liability and benefits incurred in their marriage. But for annulments (s.75) no such thing!!!
tabitha nderitu v simon nderitu - presumption that if the matrimonial property is incurred during marriage and held in one spouse’s name, then it is held in trust for the other.
LRA ACT - s.192: the land is co-owned or used by both spouses regardless of whose name its registered under, its co-owned.
- Custody & Maintenance of Children (see
Children & the Law- children act!!!!!!!!
