The petitioner has to prove that he has not connived with the commission of matrimonial offence.
There are two bars to divorce if proved to exist divorce will not be granted.
1. Absolute Bars
2. Discretionary Bars.
If an absolute bar is found to exist then the court has no choice but to refuse to grant the divorce where a discretionary bar is proved the court may or may not grant the petition.
1. Connivance is the first absolute bar – connivance is where the adultery of one spouse has been caused or has been knowingly or recklessly permitted by the other spouse. In such case the other spouse is an accessory to the adultery. If the court is satisfied of the evidence that the petitioner has been an accessory or has connived at the adultery then it has to dismiss the petition. The principles as to what constitutes connivance were laid down in Churchman v. Churchman (1945) P 44 it was stated as follows:
It is the essence of connivance that it precedes the event and generally speaking the material event is the inception of the adultery and not its reputation although connivance at the continuous of an adulterous association may show that the party conniving must be taken to have done so at the first. In this case it was stated that the material event is the inception of the adultery, that is when the petitioner first knew of the adulterous association, he must have connived for the adultery to happen.
Godfrey V. Godfrey & Wall (1965)
In this case the court held that a husband petitioner was guilty of connivance at his wife’s adultery. The wife told the husband that she was going to live with the co-respondent i.e. Wall. The co-respondent then came to stay at the matrimonial home. The husband one day after a drink or two came home and found the wife and co-respondent embracing each other. He then told them
“if you two want to go to bed together then why the hell don’t you”
which is exactly what the wife and Wall proceeded to do. The next day the petitioner turned the co-respondent out and chased him out of the home but the wife and the co-respondent continued with the association and eventually the wife moved out to live with the co-respondent. When the husband petitioned for divorce on grounds of adultery the court in refusing to grant him the decree held that he had not shown that his initial connivance was not the effective cause of the subsequent adultery.
2. Condonation: This is the forgiveness of a marital offence and reconciliation between the parties with full knowledge of all the material circumstances. Under Section 10(3) adultery shall not be deemed to have been condoned unless and until conjugal cohabitation shall have resumed.
Henderson v. Henderson the court stated that where the wife had committed adultery, the essence of condonation is that the husband with the knowledge of the wife’s offence should forgive her and should confirm his forgiveness by reinstating her as his wife. The issue is whether this re-instatement included sexual intercourse or conjugal cohabitation as provided for under Section 10 (3) and in this particular case at the time the matter was in court, such intercourse had not taken place. However the court pointed out the decision in Cramp v. Cramp (1920) P. 158 the decision in this case was that a husband who has sexual intercourse with his wife after knowledge of her adultery must be conclusively presumed to have condoned the offence. Mere forgiveness does not amount to condonation. For condonation to exist the forgiveness must be followed by cohabitation and the restoring of the offending party to their former position as husband or wife. Crocker v. Crocker (1921) P. 25 where a soldier who was serving overseas during the war wrote to his wife offering to forgive her for having committed adultery when he was away. The wife accepted the offer but on his return home he changed his mind and petitioned for divorce. It was held that there was no condonation because there was no reinstatement.
Commission of a further marital offence will revive condoned adultery or cruelty. That is where the respondent has committed adultery and cruelty which is condoned by the petitioner if the respondent commits another offence then the condoned offence will revive and the petitioner will be entitled to a divorce on the ground of the condoned act. Beard v. Beard (1945) 2 All ER and Bertram v. Bertram (1944) P. 59
3. COLLUSION: This is the presenting of a divorce petition by way of a bargain or agreement between the parties. The reason why this is a bar to divorce is that true facts will be hidden from the court and in some case marital offence will be procured or pretended for the purposes of securing a divorce. Churchward v. Churchward the petitioner declined to divorce his wife who wanted to marry the co-respondent until she had made a settlement in favour of the children of the marriage and she agreed to do so since she wanted to be released from the marriage, deposited some amount and the petitioner then filed his petition. It was held that this amounted to collusion.
1. Unreasonable Delay: Delay that is unexplained may be fatal to a petitioner’s relief and in Johnson v. Johnson (1903) it was stated that the reason why courts insist on steps being taken promptly are that it is a terrible thing that people should go around and about neither married nor unmarried possibly liable to contract fresh and illegal matrimony and certainly exposed to the temptation to commit adultery. The court is saying that once a marital offence has been committed then parties are in a state of limbo, they do not discharge their usual marital obligations and the temptation to commit adultery is there and that is why the court wants them to take steps promptly. In this case the fact that the respondent wife had become insane and had been in an asylum for many years and that the husband had been expecting release by her death was held to be a sufficient answer to a plea of unreasonable delay. In this case the wife just simply refused to die.
In Binney v. Binney the husband took no steps for divorce until his wife had been living with another man for 20 years and even so only petitioned for the purpose of freeing himself to marry another woman. It was held that there had been culpable delay and the petition was dismissed.
2. Conducing Conduct: This is conduct which conduces the commission of a marital offence. Therefore cruelty, neglect, desertion or other misconduct towards a spouse who afterwards as a result commits a marital offence may bar the petitioner from obtaining a divorce. Lander v. Lander (1890) and Dixon v. Dixon (1952) classical decision where the wife refused to agree to intercourse until husband filed for divorce and it was held that the wife was guilty of conducing conduct.
3. Petitioner’s own Adultery: This receives some special treatment because in most cases the petitioner’s own adultery is a consequence of the respondent’s conduct therefore the courts will look at the circumstances to gauge whether that adultery will bar the petitioner’s petition. In Blunt v. Blunt the court laid down the considerations that will be taken into account in exercising its discretion when a petitioner is guilty of adultery as follows:
(a) The position and interest of any children of the marriage;
(b) The question whether if the marriage is not dissolved there is a prospect of reconciliation between husband and wife;
(c) The interest of the petitioner and in particular the interests that the petitioner should be able to remarry and live respectably;
(d) The interests of the party with whom the petitioner has been guilty of misconduct with special regard to the prospects of future marriage;
(e) The interests of the community at large to be judged by maintaining a balance between the sanctity of marriage and maintenance of a union which has utterly broken down.
Under Rule 28 of the Matrimonial Causes rules the
And a full statement of the facts upon which the petitioner relies for the exercise of the court’s discretion should also be lodged in court with the petition. Once the petitioner has proved his ground for divorce and none of the bars has been proved then the court should grant the divorce decree.
Under Section 15 of the MCA every decree for divorce is in the first instance a decree nisi which is not to be made absolute until after the expiration of six months after the pronouncement of the decree. However an application can be made to expedite the decree absolute within a shorter time when reasonable grounds are shown. For example where it is shown that a child will be born illegitimate or for purposes of making financial provisions for children of the marriage.
The main reason why we have an intervening period of 6 months is to enable unsuccessful respondents to appeal against the granting of the decree nisi or for any other person to intervene to show cause why the decree should not be made absolute.
As soon as the decree nisi is made absolute either spouse is then free to remarry which is not the case under the decree nisi and under Section 16 of MCA if a party remarries before a decree nisi is made absolute, then that marriage will be void.