Marriage has been defined as « a contract between a man and a woman by which they mutually promise to marry one another, the promise of one, being consideration for the promise of the other. Marriage is also understood as the voluntary union for life of one man, one woman to the exclusion of all others. Two types of marriages recognized in the English-speaking regions of Cameroon. They are Monogamy, where one man marries one woman only, and Polygamy wherein one man can marry as many wives as he chooses. There are 2 ways by which marriage is brought to the end or is terminated: by the death of one of the spouses or by a matrimonial relief which is a legally pronounced decree of divorce.
Before a party to a marriage petitions the Court, there must be a valid marriage in existence, that is they must have the capacity to marry, be of age, of sound mind, neither party must already be married, the parties must not be related by blood or marriage, they must be of different sex and must consent to the marriage. Where the parties fail to comply with the aforecited prerequisites of a valid marriage, the marriage is void ab initio.
Divorce under Statutory Law
Divorce in the English-speaking regions of Cameroon is governed by the Matrimonial Causes Act 1973 and the Matrimonial and Family Proceedings Act 1984. The Matrimonial Causes Act 1973 makes it mandatory for the parties to have been married for a period of at least one year before they can bring an action for divorce. ln addition, there must be proof of irretrievable breakdown of marriage. The Matrimonial Causes Act 1973 has laid down 5 pointers which a petitioner can rely on to prove that a marriage has broken down irretrievably. To begin with, adultery and lntolerability. lt has been defined to mean consensual sexual intercourse between a married person, who is not the other spouse and during the subsistence of the marriage. There must be actual sexual intercourse. There must be full penetration. Behaviour. As concerns behaviour irretrievable breakdown can be proved by showing that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent.
That one party treated the other cruelly. Other aspects of behaviour include physical, mental and psychological violence, evasion of matrimonial responsibilities, vile abuses, false accusations, influence of 3rd parties to name a few. Worthy of mention is the fact that in order to amount to behaviour, it must be grave and weighty. Desertion. Desertion has been defined as the unjustifiable withdrawal from cohabitation without the consent of the other spouse, and with the intention of remaining separated permanently. To succeed under this head, the petitioner must prove
that the Respondent had the intention to desert (constructive desertion). Where the respondent was forced by circumstances to stay away from the matrimonial home, desertion cannot succeed. 2 years separation. Where the petitioner shows that the parties to the marriage have lived apart for a period of 2 continuous years preceeding the presentation of the Petition, and that the Respondent consents to the decree being granted, a petition for divorce under this ground will succeed. 5 years separation. A petitioner can petition the competent Court for a decree of divorce where the parties to the marriage have lived apart for a continuous period of 5 years preceeding the filing of the petition.
Bars and Defences To a Petition for Divorce
Time Limit. No petition for divorce shall be presented to the Court before the ex piration of a period of one year from the date of celebration of the marriage. Adultery and lntolerability. Where the petitioner condones with the adultery by continuing to live with the Respondent for a period of 6 months after discovering his adulterous act. Unreasonable Behaviour. Where the petitioner condones with the behaviour of the Respondent by continuing to live together after the incident relied on. Desertion. lt would be difficult for a petitioner or deserted spouse to obtain a decree of divorce if before the expiration of the period of 2 years separation, he forgives or condones the act of the deserting spouse.
Procedure of Divorce Preceeding And Competent Court
The competent Court to hear and determine petitions for divorce is the High Court of the place of residence of the parties or celebration of the marriage. The procedure usually entails filing of a petition by the aggrieved party before the competent Court. The Judge seized of the matter attempts conciliation. Where conciliation succeeds, the petition is not entertained. Where conciliation fails, the Respondent replies to the petition for divorce and the parties are heard and judgment entered.
Divorce under Customary Law
Divorce under Customary Law could either be judicial or non-judicial. Nonjudicial divorce occurs when the parties agree to separate after fruitless attempts to reconcile them by their friends and family. Judicial divorce is very common and only the Customary Law Courts have jurisdiction at first instance.
A party petitions for judicial separation when he does not want a divorce. A decree of judicial separation relieves the petitioner from the obligation to cohabit with the other party to the marriage while a valid marriage continues in existence. The petitioner needs not prove irretrievable breakdown. He needs to prove the existence of one of the indicators of divorce.
Effects of Divorce
A decree of divorce has the effect of relieving both parties of their matrimonial obligations. The High Court is empowered to make some ancillary reliefs after a divorce has been determined. Alimony. Upon granting a decree of divorce, nullity or Judicial separation, the Court may order either party to the marriage to make to the other such periodical payments for such term as may be specified in the order. Lt may also order either party to make a lumpsum payment to the other as specified. The Court may also make maintenance orders for the upkeep of the children or the marriage. Property Adjustment. ln the exercise of the Court’s powers on property adjustment, the Court will have regard to the form/ante nuptial settlement and the Matrimonial relief. Whether it is monogamy or polygamy, joint or separate property. Where the parties opted for separate property, the Court will have no need to make any orders relating to property adjustment. But in the event of joint property, the Court will be bound to make orders with regard to property acquired in the course of the marriage such as landed property, matrimonial home and even movables. Custody. After a decree of divorce has been granted, the Court is obliged to make custody orders in respect of children of the marriage who are under the age of 18. When a Court has to make a custody order, the welfare of the child is of paramount consideration.
Other factors which may be possible for recurrent petitions for Divorce.
Apart from the indicators cited above, there are other factors which may be accountable or explain the flooding of divorce petitions before our Courts such as, poverty, unemployment, frustration, family influence. Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of 3 months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the Court, and based on that application, the Court may exercise its powers by making the divorce absolute, rescind the decree, require further inquiry or otherwise deal with the case as it thinks fit.
Yaoundé , Quartier Administratif
Lun – Ven: 8h:00min – 16:00min
Inscrivez vous à notre lettre d’information.
Téléchargez notre application