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BARS TO Divorce Presentation

Family law II (Makerere University)

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BARS TO DIVORCE PRESENTATION.

What are bars to divorce?
These are factors that may fail a divorce petition. The courts inquire into the circumstances of a
particular case to determine whether or not the petitioner in any way participated in the
matrimonial offence.

The rationale for bars to divorce. The petitioner must come with clean hands and must not
benefit from his or her wrongdoing.

There are two types of bars;

1) Absolute bars.

These are creatures of statute and mandatory in nature. The duty to inquire into application of
absolute bars is mandatory irrespective of whether the petition is defended or not. Section 6 of
the Divorce Act is to the effect that the court is required to satisfy itself so far as it reasonably
can as to the facts alleged and also whether or not the petitioner has been in any manner
accessory to or conniving at the going through of the form of marriage or adultery complained
of, or has condoned it, and shall also inquire into any countercharge which may be made against
the petitioner. Under section 7, the court shall dismiss the petition where any of the above exists.

From the sections above, the absolute bars are three, namely; condonation, connivance and
collusion.

1. Condonation.

In the case of Mugonya v Mugonya (1975) HCB 295, condonation was defined as a state of
forgiveness and reinstatement to the former marital status where both parties forget the past and
reconcile. It is founded on the principle that one cannot both approbate and reprobate, as laid
down in Howard v Howard (1962) 2 All ER 539. In that case, the wife alleged that she and the
defendant were married on April 12, 1947 and that they had six minor children. She filed a bill
for divorce on the ground of cruel and inhuman treatment. She alleged that the defendant
habitually nagged, cursed and abused her and committed personal acts of violence upon her on
several occasions. Such mistreatment and misconduct had caused her to suffer physical and
mental anguish to the extent that her nervous system was greatly impaired and her health and life

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endangered thereby. The defendant (her husband) denied all of these allegations and filed a cross
bill for divorce from the complainant on the grounds of obstinate desertion for over a year. The
court after hearing the evidence denied both the complainant and cross-complainant a divorce.

Under section 9 of the Divorce Act, adultery is not deemed to have been condoned unless
conjugal cohabitation has resumed. In Cramp v Cramp (1920) P.158, the court held 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 without resumption of
sexual intercourse does not amount to condonation. Where a spouse purports to forgive another,
but changes their mind thereafter, there is no condonation because there was no re-instatement of
the status of husband and wife.

In Musinga v Musinga (Divorce Cause No 12 of 1992), the couple was first married in Ukraine
and had a son together in 1985. Between 1988 and 1990, the wife returned to Ukraine and the
husband remained in Uganda and subsequently got a child with Annet Nabirye. The wife learnt
of the out-of-wedlock child, but reconciled with the husband and re-solemnized her marriage
vows with him. Justice Ntabgoba held that the wife had forgiven that adultery.

In a similar case of Katungye v Katungi (KALR [1999] 891), the court denied the first instance of
adultery as a ground for divorce because the petitioner had condoned it. In the first instance of
adultery, the husband went to have a bath in the bathroom outside the main home. Upon his
taking an unusually long time in the bathroom, the wife went to check on him, only to find
sleeping naked with the housemaid. The wife was scared of confronting the husband over the
matter and instead sacked the maid. With the support of her parents and the local church leaders,
the couple were reconciled and the wife returned to her home, determined to make the marriage
work. She resumed conjugal duties with her husband. In the second instance, the husband
forcibly removed the wife from her matrimonial home and started cohabiting with a former
girlfriend in the same matrimonial home.

The Katungye case gives rise to so many questions around the gender dynamics in a marriage
especially in regard to condonation. The court did not recognize the subservient position of
women in marriage. (see Tibatemwa 1999:7). We live in a capitalist world that endorses the
patriarchy. The nuclear family is an integral element in capitalist elations of production. Why is
this so? The production of human labor power is a very great area of interest for the capital. To

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the capital, the family is the economic unit charged with the production and reproduction of labor
power. Women’s labor power (bearing and raising children) have economic meaning in a
capitalist world. Motherhood is viewed as a commodity (no wonder women’s reproductive
capacities are supervised by the state-see the abortion laws and state interest in family planning-
because the capital needs to regulate the production of children). So how does the state ensure
that there’s labor production? By defining motherhood as women’s social function and marriage
as the only normal condition of women. (there are discriminatory names given to unmarried
women in Buganda- “Nakyeeyombekedde”) This denies women access to economic capital and
leaves men as the gatekeepers of economic resources (because men are viewed as the natural
providers and maintainers of women). Economic independence is power and many men have
access to this power. So when these men commit marital offences, their dependent wives may
stay in abusive marriages because of fear of losing financial support. Many cultures and religions
also impose a hierarchy of leadership in a family where women are obliged to view their
husbands as their masters.

Much as resuming the sexual relationship leads to a presumption that the matrimonial offence is
forgiven, it can be rebutted where sexual intercourse happens without the intention of restoring
the relationship to its ordinary status.

Condonation must be free, voluntary and not induced by duress or fraud. In Wells v Wells [1954]
3 ALL ER 491, court held that where the resumption of cohabitation has been induced by false
statement or fraud, then there is no condonation because the forgiveness was not given freely. In
Kazibwe v Kazibwe (Divorce Cause No 3 of 2003), the husband pleaded that the wife had
condoned his adultery, because he had shown her photographs of the children he had had outside
wedlock but they continued living as husband and wife. However, the wife denied having
knowledge that the said children were sired by the husband.

Whether or not adultery or not adultery is condoned is a fact to be determined by the court.
(Woodbury v Woodbury [1948] 2 ALL ER 634). In Colbeck v Colbeck [1961] 1 EA 431, the wife
was packing for the Christmas holiday. The husband came home drunk and criticized her
packing and her cooking. She was tired and she threw a cup of tea at him. The husband retaliated
by striking her on the head with a milk jug which cut her badly. For the sake of the children, the
family proceeded with the holiday and on Christmas eve they had one act of intercourse. After

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the holiday, she waited for her child to return to school and then left the matrimonial home.
Justice Goudie held that it is a question for determination by the court in each case whether the
condonation is to be drawn from the circumstances that an act of intercourse constitutes
forgiveness and re-instatement. In the instant case there was no condonation.

In Zavuga v Semwanga and Haji Ssenyonjo (Divorce Cause No 10 of 2003), the husband had
concurrent sexual relationships with two of the family maids. In the first instance, the wife found
the husband with one maid in a very compromising position, suggesting that sexual intercourse
had taken place. About a year later, the husband impregnated another maid who confessed to the
adultery. In yet another incident, the husband brought a girl home. They bathed together and left
the home together. The court granted the divorce on grounds of cruelty and desertion. It is
unclear whether or not the same conclusion would have been reached had there been no other
matrimonial offences.

General comments on condonation

A number of cases have been thrown out because adultery could not be relied on to secure a
divorce because it had been ‘forgiven’.

The bar for condonation is unfair to women who are in most cases dependent on men.

Society has the expectation that a woman should keep the home intact (which is why women
overlook so many instances that they shouldn’t) and they are unable to get justice when they
have finally endured enough.

A case for reform

Condonation should be used as evidence to portray the resilience and determination of the
petitioner to save his or her marriage.

2. Connivance

It is guilt of a corrupt intention of promoting or encouraging either the initiation or continuation

of an act amounting to a matrimonial offence. Gipps v Gipps (1861-1873)

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The other spouse is an accessory to the matrimonial offence. If the court is satisfied of the
evidence that the petitioner has been an accessory or has connived at the offense, then it has to
dismiss the petition.

Churchman v Churchman (1945) p44- the principles as to what constitutes connivance were laid
down. “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 repeatition although connivance at the
continuation of an adulterous association may show that the party conniving must be taken to
have done so at 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.”

The above principle was reiterated in Maddock v Maddock (1958) O.R 810.

In Godfrey v Godfrey and Wall [1964] 3 ALL ER 154, the husband’s petition for divorce on
grounds of adultery was denied because he had not shown that his initial connivance was not the
effective cause of the subsequent adultery.

Similarly in Manning v Manning and Fellows v Fellows [1950] 1 ALL ER 602, court found that
adultery was clearly promoted an d encouraged by the petitioners, Mr. Manning and Mrs.
Fellows.

Douglas v Douglas [1950] 2 ALL ER 748- where a man watches his wife and is seeking to
discover a matrimonial wrong, he is neither promoting nor encouraging it, but is seeking to
secure the evidence to mitigate impunity.

3. Collusion

This means that the spouses worked collaboratively for one of them to commit a matrimonial
wrong with the intention of obtaining a divorce.

Bradway (1961-1962, p.374)- collusion is undesirable because it has criminal implications for
those who indulge in it as well. It constitutes a form of contempt of court for hiding the true facts
from court.

There is a thin line between collusion and uncontested petitions. There are instances where
courts treat uncontested petitions as collusion cases. In Colbeck v Colbeck, the respondent

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instructed his advocate not to defend the case on ground that he did not wish to subject his wife
to cross examination. Court found no evidence of collusion.

Mbabazi v Bazira (Civil Appeal No 44 of 2004)- court concluded that formal proof in situations
of uncontested evidence is superfluous, unnecessary and unjustified.

Habre International Co Ltd v Ebrahim Alarakin Kassam (SCCA No. 4 of 1999)- Whenever the
opponent has declined to avail himself of the opportunity to put his essential and material case in
cross examination, it must follow that he believes that the testimony given could not be disputed
at all.

2) Discretionary Bars

This where the court is given the liberty to either refuse or grant the divorce. Section 8(2) is to
the effect that the court has discretion to grant a divorce in situations where the petitioner is
guilty of unreasonable delay, has also committed a matrimonial offence or willfully or by neglect
conducted the adultery.

The discretion must be exercised judicially not arbitrarily, taking into account the rights of the
parties.

Blunt v Blunt [1943] 2 ALL ER 76- the court established the considerations taken into account in
exercising its discretion when a petitioner is guilty of adultery. These include; a full statement of
the facts upon which the petitioner relies, the position and interest of the children of the
marriage, the balance between the sanctity of marriage and maintenance of a union which has
utterly broken down.

Mrs. Ruhara v Ruhara [1977] HCB 86- court dissolved the marriage even though both parties
committed adultery.

Kironde v Kironde and Moses Zizinga (Civil Divorce Cause No 06 of 2001)- court held that
while both the wife and husband admitted adultery, it did not amount to connivance,
condonation or collusion. The court appreciated the fact that the parties agreed to settle the case
expeditiously, thus saving court’s time and money instead of having protracted proceedings.

Dixon v Dixson [1952] 1 ALL ER 910- where the petitioner conduces adultery, the court has the
discretion to dissolve the marriage.

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Unnecessary and improper delay is another discretionary bar.

Prince v Prince [1920] KLR 21- Court took into consideration the poverty of the petitioner, the
long drawn out correspondence and the difficulties of communicating owing to war and found
the delay reasonable.

Binney v Binney [1893] ALL ER 480- the husband failed to initiate divorce for 20 years. When
he eventually petitioned for divorce to be free to marry another woman, the petition was
dismissed for unreasonable delay.

Relevance of bars to divorce

Family (Mediation) Rules were enacted. They require that before any matter is heard by court,
the parties are obliged to go through mediation. Many divorce cases are being settled by signing
of consent judgements on the basis that the marriage has irretrievably broken down.

A bar to divorce cannot save a marriage.

In conclusion, bars to divorce are largely irrelevant.

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