Dissolution of Marriage

• Pages: 102-158

CHAPTER 7

DISSOLUTION OF MARRIAGE

PART ONE

PRELIMINARY CONSIDERATIONS

1. HISTORY OF DIVORCE LAWS: AN OVERVIEW

With the exception of Jamaica and Barbados, and the qualified exception of Antigua and

Barbuda and St Kitts and Nevis, the divorce regimes of the various CC jurisdictions are

patterned either on a repealed version of English divorce laws or current English divorce law.

In the case of Barbados and Jamaica, the divorce regime is modelled on the Australian divorce

laws. However regardless of the divorce regime currently in operation in the respective CC

jurisdictions, the CC jurisdictions, as for mer British colonies, either through reception, or

passage of indigenous legislation, all share a similar divorce history premised on the divorce

laws of England, a brief history of which will be examined.

Until the passage in 1857 of the MCA in England, which Act transferred the matrimo-

nial jurisdiction to the civil courts, the only form of divorce that could be granted, fell under

the exclusive jurisdiction of the ecclesiastical Court of Arches. The Court was governed by

the canon law of the Church of England, rather than the common law. T he overarching

philosophy that informed the ecclesiastical courts was that marriage was an inviolable holy

sacrament rather than a specialised form of contract between two consenting parties.

Accordingly, the ecclesiastical courts granted a divorce a mensa et thoro (divorce from bed and

board) which operated more in the nature of a judicial separation than a divorce in that the

parties were free to live apart but could not remarry.Even so, the divorce a mensa et thoro would

only be ordered on the limited grounds of extreme cruelty or desertion of the wife by the

husband. Spouses wishing to terminate their marriage so as to leave them free to remarry,

could only do so either by obtaining an annulment, or from 1697, by Act of Parliament via a

private bill. Both of these options were ef fectively relegated to the wealthy as they involved

costly and complex proceedings.

While the MCA, 1857 undoubtedly marked the beginning of a new era, in that it made

divorce more accessible to the wider society, the philosophy under pinning the granting of

divorce as amounting to the breaking of a sacred vow remained essentially unchanged. This

was reflected in the divorce provisions of the 1857 Act in that adultery was the sole divorce

ground and while the MCA provided that a man could divorce his wife on the ground of her

adultery, the wife, to be granted a divorce, had to prove adultery agg ravated by an additional

offence such as incest, sodomy, cruelty, rape or two years desertion without reasonable cause.

Further, in the case of both the husband and wife applicant, the divorce would not be granted

if therewas collusion or connivance between the parties. This solitary adultery divorce ground

was defined as a matrimonial offence. Although the MCA 1857 abolished, as was previously

the case under the ecclesiastical jurisdiction, adultery as a criminal offence, it retained the stan-

dard of proof applicable to a criminal matter.

The MCA 1923, a private member’s bill, put the wife on the same footing as the husband

by abolishing the additional conditions placed on the wife when petitioning for divorce but

collusion and connivance remained a bar to divorce for both husband and wife petitioner.

In 1937, by another private member’s bill, which provisions implemented the majority of

the recommendations of the majority Report of the Royal Commission on Divorce and

Matrimonial Causes (the Gorrell Commission) published in 1912, the MCA 1937 was enacted.

The MCA 1937 which effectively remains the indigenous divorce law of Montserrat and

Guyana, and in the case of Belize and The Bahamas, some of its provisions still constitute

grounds of divorce, extended the divorce grounds to include cruelty and to desertion for more

than three years without cause.

A no fault ground of ‘supervening incurable unsoundness of mind’ was also introduced.

The 1937 Act also included a statutory restriction of a minimum period of three years before

a petition for divorce could be presented, except with leave of the court on the grounds

prescribed by the Act. Although the 1937 MCA added new grounds available to both husband

and wife and introduced a minimum period in which a petition could be presented without

leave of the court, it retained the matrimonial offence philosophy with its emphasis on guilt

and innocence, sinner and sinned against, so that the petition for a decree of divorce could only

be made by the innocent sinned against party.Isaacs J. explained the rationale in The Bahamas

case of Ingraham v Ingraham(Nee Pinder) stating “It is a principle of law that a man is not allowed

to create his own ground and then apply to the court for a divorce.”1This principle extended

to the no fault g round of insanity in respect of which only the ‘innocent spouse’ could obtain

a divorce against the ‘guilty (insane) spouse’.

There were further amendments made to the divorce law over the years, including the

passage of the Divorce (Insanity and Desertion) Act 1958, which essentially sought to widen

the definition of insanity. However in respect of the grounds for and the philosophy governing

divorce in general, this remained unchanged until the passage in 1969, of the aptly called

Divorce Reform Act.

The 1969 Act did not come into operation before the law governing maintenance and

property matters were reformed by the MPPA 1970 and which laws were consolidated by the

MCA 1973 England. It is to be noted that the 1973 MCA, made no changes in respect of the

1969 MCA divorce provisions other than to reduce the time for applying for a divorce without

leave of the court from three years to two years and finally to one year pursuant to the

Matrimonial and Family Proceedings Act 1984.

The passage of the Divorce Reform Act 1969 overhauled the divorce laws in that it intro-

duced significant changes not only with respect to the ground for divorce, but most

significantly, the general philosophy underpinning the dissolution of marriage.

The 1969 reform of the divorce laws was a result of the Law Commission Report on ‘The

Law of England and the Reform of the Grounds for Divorce: Field of Choice.’2The Report

recommended the removal of the matrimonial offence divorce regime; that irretrievable break-

down of the marriage should be the sole ground for dissolution of marriage which was

provable by any one of five specified facts; a change of focus from guilt and innocence to one

of encouraging reconciliation; and where possible, the protection of the economically vulner-

able, including children.

The 1969 Act, based in the main on the Law Commission’s recommendations, repealed

the matrimonial offence model, in particular, its quasi-criminal offence divorce g rounds and

replaced it with a model based on the irretrievable breakdown ground, to be proven by fault

and/or no fault facts.

Much as the passage of 1857 MCA, was considered in its time as a ground-breaking piece

of legislation, the 1969 Divorce Reform Act which was consolidated into the MCA 1973

Chapter 7: Dissolution of Marriage 103

1 BS 2004 SC 140 at para 42.

2 Law Commission No.6 Cmnd.3123 (1966) Law Reform Commission 3123 of 1966.

represented an equally seismic shift in the approach towards and the philosophy underpinning

the dissolution of marriage.

2. DIVORCE REGIMES AND APPLICABLE CC JURISDICTION

There are essentially three divorce regimes or models in the CC jurisdictions, with some juris-

dictions having a hybrid version of one of three divorce models. The ground(s) on which a

divorce may be obtained is dependent on the divorce regime applicable to the respective CC

jurisdiction. In brief, the following sets out the divorce regime and relevant divorce ground(s)

and facts applicable to the respective CC jurisdictions:

A The matrimonial offence model – Guyana and Montserrat

a. Montserrat –Pursuant to s.3 of the MCA CAP. 5.02, the petitioner may obtain a divorce

on the ground that the respondent:

i. has since the celebration of the marriage committed adultery; or

ii. has deserted the petitioner without cause for a period of at least three years immedi-

ately preceding the presentation of the petition; or

iii. has since the celebration of the marriage treated the petitioner with cruelty; or

iv. is incurably of unsound mind and has been continuously under care and treatment

for a period of at least five years immediately preceding the presentation of the peti-

tion; and by the wife,

v. on the ground that her husband has since the celebration of the marriage, been guilty

of rape, sodomy or bestiality.

b. Guyana – s.9 MCA Cap 45:02 contains the identical provisions as Montserrat except that

with respect to the desertion ground s.9 (1)(a) provides that the respondent has since the

celebration of the marriage been guilty of malicious desertion with or without adultery.

B Hybrid of matrimonial offence model: the living apart no fault

ground introduced – The Bahamas, Belize, Antigua and

Barbuda, St Kitts and Nevis

a. The Bahamas – Pursuant to s.16 MCA CH.125, the grounds for obtaining a divorce are:

i. adultery of the respondent;

ii. cruelty of the respondent;

iii. desertion of the petitioner for a continuous period of at least two years immediately

preceding the presentation of the petition;

iv. that the respondent has lived separate and apart from the petitioner for a continuous

period of at least five years immediately preceding the presentation of the petition;

v. that the respondent has been guilty of a homosexual act, sodomy or has sexual rela-

tions with an animal; and in respect of the wife;

vi. that the husband has since the celebration of the marriage, been guilty of rape.

b. Belize – S.129 Supreme Court of Judicature Act CAP. 91 (SCJA) contains the identical

matrimonial offence grounds as Montserrat except that:

104 Commonwealth Caribbean Family Law