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Judge calls for review of divorce law by JADA LOUTOO

Source: Trinidad and Tobago Newsday

A HIGH COURT judge has pointed to the “obscurity” of holding on to the section of the Matrimonial Proceedings and Property Act which compels a court only to grant permission if there is proof the marriage has irretrievably broken down.

Justice Allyson Ramkerrysingh made the suggestion as she granted a decree nisi to a man who filed for a divorce which was contested by the wife, who felt the marriage could be saved.

But the judge, in allowing the divorce, held that the wife behaved in such a way that the husband could no longer reasonably be expected to live with her.

The couple had been married for almost two decades.

In her ruling, Ramkerrysingh said fully contested divorces were rare and this one moved her to write the decision.

“I also wanted to highlight the obscurity of holding on to fault-finding facts when the grant of a decree nisi is almost guaranteed. It may even be considered absurd where, as in the case before me, it is obvious that the marriage is ended, but one party insists on dragging the marriage on to its inevitable demise.”

She said abolishing the fault-finding facts, as provided for in section 4(1) of the act, could avoid the “emotional and perhaps psychological torment in staying in a marriage that is nothing more than a shell, for how many years it would take to meet the requirements of the five-year separation term (a reluctant respondent is hardly likely to consent to a divorce). It seems pointless to delay an outcome that is inevitable.

“Until Parliament does away with fault-finding facts, we have to live with this less than desirable reality,” she said.

In the proceedings before her, Ramkerrysingh said section 4(1) of the act had to be strictly applied and the court had to be satisfied that the behaviour complained of was unbearable to the extent that the petitioner could not reasonably be expected to live with the respondent.

It was so strict, she said, that “even if it is clear that the marriage is at an end, and…the petition is fully contested, as in this case, which is a sure sign that there is little likelihood that the parties will remain married and if the petitioner fails to persuade the court that he or she cannot live with the Respondent, or has otherwise failed to prove his or her case, then the petition must be dismissed.”

She described this outcome as ‘rather draconian.”

Thankfully, she said the scenario as in the case she adjudicated on did not happen often, “but it presents the argument for doing away with fault-finding facts altogether.”

She said over the course of time, there has been a steady lowering of the factual and evidential bar for granting a decree nisi based on any of the fault facts.

Generale, ” for even the most contentious divorce suits, almost every petitioner succeeds and in most cases in which the respondent files a cross-petition, both parties are encouraged (and indeed need only the slightest nudge) to seek mutual decrees.

“This feeling of mutual satisfaction, that each side exits the divorce stage with trophy in hand, leaves neither party feeling that he/she has trumped or triumphed over the other, and usually sets the tone for a more conciliatory approach for the financial battle ahead.”