DEFENCES AND BARS TO A PETITION FOR DIVORCE

The court has discretion whether or not to dissolve the marriage if one of the defences is established in the case of discretionary bars.

CHAMAN LAW FIRM

6/15/2022 2 min read

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DEFENCES AND BARS TO A PETITION FOR DIVORCE


The court has discretion whether or not to dissolve the marriage if one of the defences is established in the case of discretionary bars. The discretionary bars are also three in number, and they are petitioner's adultery, petitioner's desertion, and conduct conducing to the commission of a marital offence. The old absolute and discretionary bars to divorce still apply under the Matrimonial Causes Act 1970 to all the facts evidencing irretrievable breakdown of the marriage stipulated under Sections 15 and 16, except the fact of Section16 (1)(g).

(i) Condonation

This suggests the forgiveness of a spouse who has committed a matrimonial misconduct and his or her reinstatement to the position of a spouse. The two main constitutive elements of condonation are forgiveness and reinstatement, and therefore are given on the condition that no further marital misconduct is committed.

There cannot be condonation without knowledge of the matrimonial misconduct committed. Forgiveness alone cannot constitute condonation without reinstatement. The spouse who is quilty of the marital misconduct must be reinstated to the position of a spouse, and reinstatement cannot happen unless reconciliation takes place between the parties.

(ii) Connivance

This is based on the legal maxim that no act is actionable at the suit of any person who has expressly or impliedly assented to it either in advance or contemporaneously-volenti non fit injuria. A spouse will not therefore obtain relief for misconduct in which he acquiesced or which he encouraged. There must be a corrupt intention which is proof not only that a spouse acted in such a manner that the misconduct might result, but also that he intended that it should result so.

(iii) Collusion

It exists if there is an agreement between the spouses, with the intent to deceive the court into granting a decree of divorce which it would not otherwise grant. It is an agreement or acting in concert to procure the initiation or prosecution of a suit for divorce with intent to cause a perversion of Justice.

The quintessence of collusion is that the petitioner and respondent act in concert with the mutual intent to cause a perversion of Justice, and there cannot be collusion without agreement. Agreement between both parties to a divorce proceeding is treated as suspicious for the reason that it often deprived the court of the liberty of drawing out the entire truth. What constitutes collusion is agreement and improper motive or purpose.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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