The Marriage (Amendment) Bill, 2023 (“the Bill”) was introduced to Parliament by the Suna West MP, Peter Francis Masara. The proposed amendments to the Marriage Act, 2014 are centered on making the divorce process more amicable, simple and cost-effective. Currently, the existing procedure for divorce, as laid out in the Marriage Act, 2014, hinges on proving fault – based reasons. In simple terms, if someone wants a divorce they have to prove that there was; adultery, cruelty, desertion, and other similar reasons as mentioned in the Marriage Act, 2014.
The Bill brings about a significant change, especially under Section 75A, which provides for divorce based on mutual consent. Under the proposed new provision, parties to a marriage have the capacity to agree to separate in a cooperative manner. This mutual decision then becomes the foundation for obtaining an official divorce decree.
The following shall form the grounds for divorce by mutual consent under the Bill: where a marriage has irretrievably broken down, where parties mutually agree to dissolve the marriage and where parties have separated for at least a year immediately preceding the date of presentation of this Bill. The Bill also enlists conditions for grant of a decree of divorce by mutual consent. These conditions include the following: the divorce petition is made at least a year after the celebration of marriage; the parties jointly present the petition, freely give consent to the dissolution in writing and are present in person at the hearing of the petition.
The current fault-based divorce process outlined in the Marriage Act, 2014 often results in bitter and drawn out separations. This approach fuels a hostile environment, making it difficult for families to interact positively after the divorce is finalized. The negativity that surrounds the divorce proceedings contradicts the goal of promoting a healthy and harmonious post – divorce family relationship.
The specific grounds for divorce as listed in the Marriage Act, 2014 are also quite rigid. Furthermore, the evidence required to prove these reasons is significantly demanding for the party initiating the divorce.
The Attorney General, while addressing the Committee on Justice and Legal Affairs, expressed his rejection of the Bill. He indicated that the primary tenets of the Bill as regards the current regime on divorce being lengthy and expensive are untrue since a perusal of the court divorce files shows that divorce cases take less than six months to be concluded. According to him, the Bill is aimed at weakening the institution of marriage and family law and his appeal is that the focus should be shifted towards strengthening alternative dispute resolution in resolving family disputes and the formulation of policies that preserve the family unit. He also opined that since marriages are conducted in accordance with customs, rites and/or distinct faiths, the same customs and rites should have a bearing on the dissolution of marriages and the decision to divorce should not be left solely to parties to decide.
The Bill can be accessed here. Please contact us at info@cflegal.com should you require further information.
