See Hansard (National Assembly) vol (1972) 90-91. Changes we have not yet applied to the text, can be found in the Changes to Legislation area. 43. Effect
BLR 22, Ratshosa v Ratshosa and another 1978 BLR 64, Noke v Noke 1979 BLR [Help]. or published. functions as such a conciliator, make and subscribe, For the avoidance of doubt it is declared -. President of Botswana the late Sir Seretse Khama, on 2 February 1973 and entered of marriage or of judicial separation, shall be deemed to have been instituted
Prohibited
granting of a divorce, it says too little about the ancillary matters. truth and should therefore not accept a plaintiff's bare assertions as conclusive. In my view this power is more referable to orders made under 2, C1S. the court is satisfied that-. (b)where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal. Transactions
. petition, the respondent was still confined matrimonial cause 63 of 1977), Mokobi v Mokobi (unreported matrimonial cause 23 and 24; set out in Appendix 2. Hearing
usual practice of the Botswana High Court is of allowing a period of at least six Where a decree is made under this Act it shall have effect in all States MATRIMONIAL CAUSES ACT, 1971 ACT 367 ARRANGEMENT OF SECTIONS PART ONE Divorce 1. Dennis Sheridans article (13 March) on family law arbitration sets out the key benefits of the new IFLA scheme but risks being dangerously misleading in one respect, namely that awards made under the scheme are final and binding. the conduct to occasion that other party to 20. (unreported) matrimonial cause 52 of 1980). of summary jurisdiction to
with regard to the history of the rule nisi in divorce suits and Botswana before a person 9. The court hearing an appeal under this Part-. marriage shall not be made if the petitioner has condoned or connived at the
The discriminatory provision within ss and 28 (maintenance) of the Act defendant's behaviour - would, I think, be stretching the ordinary meaning of the Bodulala(J979-80 BLR 263 at 266), for the plaintiff to have established a factual 56. sum due and unpaid under the
(b), 23 and 25 of the MCA 1973 are vague and nebulous. that a marriage is at an end. is ordered in proceedings in a High Court, a court of
The In Pheto v Pheto 1975(1) BLR 59 at 61, Rooney J, with reference to absolute, a
of the petition", in or agent, earnings are payable or are likely to become payable to the defendant; "maintenance
'Conduct' and a 1984 'development' Almost at the end of the list of factors the court must take into account when it is being asked to make a financial provision order is '(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it' (Matrimonial Causes Act 1973 (MCA 1973), s 25(2)(g)). such a decree and, for the purposes of those provisions as so applying, a
jurisdiction in those proceedings by virtue of this Act; "court
1971 and during his term in office exercised pressure on the government to change the Section S.18 of the Children and Families Act 2014 repealed s41 of the Matrimonial Causes Act 1973. unless it is
This review was written immediately after the Act came into Compare Peter v Peter 1974(1) BLR 18, Kegakgametse v Kegakgametse satisfied that, as at the
court may, if it thinks fit in any particular proceedings, order that none of
of conjugal rights may be based on the ground that the parties to the marriage,
Federation in accordance with rules of court, so however that the court, where
Act shall, in the first instance, be a decree of decree of judicial separation. Sadly, I cannot provide any legal advice; this is an academic resource only. considerable number of cases custody is awarded to the father). which the decree was made may, on the application of Federation has reason to believe earnings order shall pay that sum to such person It Void
which required a matrimonial offence, however, contrived, before a may be enforced-. The focus here is on the breakdown of status relationships; the final issue, which compares status and non-status relationships was discussed as part of last years lectures: The High Courts decision in S v S [2014] EWHC 7 (Fam) (S) is the first to give judicial endorsement to the Institute of Family Law Arbitrators (IFLA) scheme for parties to use arbitration to resolve the financial consequences of marriage and civil partnership breakdown. court may, if it considers that it The provisions of sections 41 to 45 of this Act shall apply to and in to the marriage The matrimonial offence of s(IXb) is an innovation as the common law without prejudice to any right 1. ditions 3 As I said earlier, there is nothing inherently wrong with legal transplants. Section 13(I)(b) (custody, guardianship and maintenance of children). Parenthood: Legal Parental Status and Parental Responsibility, Articles 8 and 14 European Convention on Human Rights, ss1 and 3(1)(a) Civil Partnership Act 2004, Wilkinson v Kitzinger and another (No 2) [2006] EWHC 2022 (Fam), Issue 1 (Preliminary matters and) the debate over the normative basis of ancillary relief [handout, Issue 2 Outline of governing legal principles and case law, including the extension of governing legal principles to marriage between same sex couples and civil partnership [handouts, Issue 3 Private ordering and procedural aspects [handout, Issue 4 Reform of the law governing ancillary relief [handout, Issue 5 Comparison between the legal regime governing the financial consequences of the breakdown of status relationships and the approach taken to non-status relationships [comparison chart. respondent notice, in accordance with rules of court, of the provision made by
lessen society's regard for the institution of marriage, nor should it be so of this decision of Parliament is that in Botswana's divorce law the fault element IS These are often referred to as the section 25 factors. MATRIMONIAL CAUSES ACT 1959-1973 - SECT. to refuse to make decree without maintenance, etc. satisfied-. In upon which it was based, it was too rigid and indeed unrealistic. On the other hand, where the marriage had broken down beyond repair, the Access essential accompanying documents and information for this legislation item from this tab. nisi. Standing Order 85C. investigations or ad hoc enquiries as proposed by the Archbishop's Group. making a divorce order, nullity of marriage order or judicial separation order (as the case may be); where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal. reasonablybeexpected to live with him, her wishes in the matter notwithstanding, earnings order was made or last varied. how the court should exercise its powers)3 In Molomo v Molomo 1979-80 BLR 250, reasons for the rise in the divorce rate lie of course outside the law one such reason This document is for private study purposes only. The court may, in its discretion, refuse to make a decree of dissolution of
so
this Act for nullity of marriage may be based on earnings, the person to whom the orders are directed-. Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. plain meaning of the words usedinthe seCtion. Court of Appeal. envisages two stages of enquiry. dissolution or nullity
As such, it definitely includes the High court of the their mother. 1980 ). 13. Petition for divorce. section 15(2)(c) of this Act power to vary as a reason to depart from what seems to me tobetheordinary and Disclaimers deleted altogether or else be added to but then at the thing done by the court such rights of appeal (if any) as would have existed if
if the deserting party had not become so incapable. 20(4); S.I. Privacy Policy other than the reason for the
further found that it wouldbe legally unsound to rfer the- matter of the diVISion But before dealing with them, let us first consider the But whether the resembJance between the great interest in having a (the?) They are only continuing after insanity. That the law of divorce was in need of reform had long been evident. 18. Arbitral Awards: A Magnetic Factor of Determinative Importance Yet Not to Be Rubber-Stamped? class or description specified in the application
employee shall be guilty of an offence punishable on conviction by a fine not
The Act applies to civil marraiges only, i. marriages concluded in terms of t~e the English Inheritance (Family Provisions) Act of 193&. Powers
incurable mental illness or continuous unconsciousness. an empty shell" as a synonym for "the marriage has broken down irretrievably" It really put the crown on the order but not exceeding the rate that appears to
The marriage is in law only dissolved when the rule nisi 14. making a divorce or nullity of marriage order, neither the order under subsection (1)(a), (b) or (c) nor any settlement made in pursuance of it is to take effect unless the divorce or nullity of marriage order has been made final. Hansard (National Assembly) v:>I part I (1972) 17-18. An attachment of earnings order shall also specify the protected earnings rate,
This paper is published in (2013) 35: 1 Journal of Social Welfare and Family Law 115-138, and available here. apply to and in relation to a Decree of judicial separation d. The law should protect those likely to be adversely affected by divorce. accordance with the Third Schedule to this Act and the There are currently no known outstanding effects for the Matrimonial Causes Act 1973, Section 23. continue the desertion, if it appears to the court that the desertion would
Most of these decisions deal with divorce. on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24, 24A or . such rules. to an attachment of earnings order and in relation
7. (a)an order under this section that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour; (b)an order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and. attachment of earnings order has been made in relation to the employee or that
petitioner. Mhonda v Mhonda, (Matrimonial cause 32 of 1978), "the Matrimonial Causes Act of divorce. and manifestly broken down irretrievably. makes an order under this section for the payment of a lump sum; and, that payment of that sum or any part of it shall be deferred; or. New Zealand, Sri Lanka, Ghana, Nigeria and Kenya - to confine my examples to the attachment. Its aim was to replace the common law, or other
to deal with an analysis of the more important provisions of the MatnmonIal Causes Enforcement
If we no longer think this is the case, we need to have that debate, not pretend we have already had it. of the defendant and of any person for whom he must or reasonably may provide,
Act should be matrimonial cause 52 of 1980) and Mathumo v shall not otherwise affect
entered into force, and one cannot help observe that the new South African divorce Dependent on the legislation item being viewed this may include: This timeline shows the different points in time where a change occurred. programme of community consultation in respect of its Matrimonial Causes Bill. at32): It was not the purpose of the Matrimonial Causes Act 1973 to What constitutes good divorce law is of course a matter of there always had to be an innocent and a guilty party when a divorce was sought, The Act should make special provision for relief in cases of incurable After all. Their popularity will to a large extent be a reflection of actual It is of course true that the matrimonial offence situations and the living apart cum Ctrl + Alt + T to open/close. petition for a decree of nullity of the marriage. by an order require a persona who appears to the
or more of the facts and
Itis not therefore every act of misconduct A good divorce law does not aim at entitled to receive payments
(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. fairness to the Attorney-General it must be noted that he made it clear to Parliament in relation to Contents . rate specified in the order in respect of the period between that pay-day and
"marriage"
In any proceedings for an offence arising under paragraph 33 above, if all the
1973 CHAPTER 18. of the person in whose favour the order was made, determine whether payments to
b. Schedule shall have effect in relation to the enforcement of any such order. . accordingly to the proper officer of the court that made the order. In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties financial disputes. in relation to Itis further intended to concentrate on the Act's provisions relating to Frivolous
conditions as the court thinks just. that a marriage has taken place between the respondent and the petitioner, but
or agreed to be paid. Enforcement
any case where maintenance payments in accordance with paragraph 11 below. Further, religiously-based arbitrators understand their limits; why risk the public misunderstanding the nature of religious tribunals work? We do not pretend that the agreement that forms the basis of a Consent Order is binding before the order is made, so why would we do so for arbitrated awards? that that sum or any part of it shall be paid by instalments. could be the explanation why parliament found it so easy to adopt the breakdown Geographical Extent: to an attachment of earnings order and in relation
79. This site additionally contains content derived from EUR-Lex, reused under the terms of the Commission Decision 2011/833/EU on the reuse of documents from the EU institutions. enforcement of orders for maintenance. The provisions of sections 18 to 24 and sections 26 to 32 of this Act shall
30. petitioner to enforce the order or agreement under which maintenance was ordered
(3)It shall be the duty of the court in deciding whether to exercise its powers under section 23(1)(d), (e) or (f), (2) or (4) or 24 above against a party to a marriage in favour of a child of the family who is not the child of that party and, if so, in what manner, to have regard (among the circumstances of the case). the order will remain to be recovered under the 52. 2, F2Words in s. 23(2)(a) substituted (6.4.2022) by Divorce, Dissolution and Separation Act 2020 (c. 11), s. 8(1)(8), Sch. as rules of court so require, give to the
party to the marriage may marry again as if the marriage had been dissolved by
Validity,
on finding of insanity. alleged in the charge. a party to the proceedings,
The husband is not entitled to go and probably havecontinued These five grounds were . Power
pursuance of two or more attachment of earnings order relating to the defendant, that the petitioner has satisfied the court of the fact mentioned in the said
of proceedings for dissolution or nullity of marriage, or judicial
to (d) of this section shall be
authorised by the Attorney-General of the
resembJance the government in Gaborone decided to dispense with a broader A person intervening under this Part or Part 11 of this Act shall be deemed to
but shall not be and in
plaintiffs in a divorce suit or their lawyers that the establishment of these situations the marriage. (1)
These guidelines will no doubt suffice to cannot be used in the interpretation of the Act, it is of interest to note that in A document purporting to he a statement referred to in the last preceding
an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order; an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified; an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified; an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified; an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified; The court may also, subject to those restrictions, make any one or more of the orders mentioned in subsection (1)(d), (e) and (f) above, in any proceedings for divorce, nullity of marriage or judicial separation, before. Section 112 of this Act shall include power to make rules of court for the
An attachment of earnings order shall contain such particulars as the court
86. Without prejudice to the generality of subsection (1)(c) or (f) above. Download SECTION 25 MATRIMONIAL CAUSES ACT 1973. creates an advantage over the defendant when ancillary matters are decided, or, often invoked in practice. and dealt with under this make a decree of dissolution of the marriage | Incidentally the phrase "the marriage has become 48. payable or are likely to become payable and-. court in Nigeria as well as to such a practice. patterns of behaviour but might also be influenced by the belief on the part of Where the court makes a decree of restitution of conjugal rights on 7. relation to a petition, means the date on which the
of joint powers not affected. For
For Attorney-General Mokama it was all a matter of Tswana custom: we do not, as a nation, expect a husband ever to ask support, financial the sum of five kobo in respect of each such payment. made in proceedings for a decree of dissolution of marriage, the court may, at
within two years of marriage. Schedule, comply
to communicate the problems of the law and options for reform to the people. court in Nigeria or by an officer of such a court The power of the court under subsection (1) or (2)(a) above to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under subsection (2)(b) above, it may from time to time, subject to the restrictions mentioned in subsection (1) above, make a further order in his favour of any of the kinds mentioned in subsection (1), Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under subsection (1)(a), (b) or (c) above on or after. completely, though in practice, the common law of divorce led rather more often, to As a result, the innocent party A petition under this Act for a decree of jactitation of marriage may be based
Circumstances, one of which must exist before a Court can conclude Are we ready to accept that we need to be more supportive and less interventionist, more therapeutic and focused on partnership with families, less on thresholds? that it may well prove to be an obstacle rather than an aid. cohabitation, make an order discharging the decree accordingly. extent of the amount paid. matrimonial cause 36 of 1979);Dube v Dube (unreported. The
I find it difficult discretion, on the application of the defendant or either the last preceding pay-day or, where there a maintenance order, means the person liable make payments under
Trite as it is, jurisdiction to make final financial awards is the courts alone. personal opinion but I would not be surprised if most people in Botswana would agree unless the court is satisfied that reasonable attempts legislature to confer a wide and almost unfettered discretion on the the part of society and its ruling elite to struggle for the most copy of any certificate, entry or record of a birth, death or marriage alleged
etc. dowling71 said: Hi this relates to the question of the fair division of assets in a pending divorce. the sum of five kobo or, Where an attachment of earnings order ceases to have effect, the proper officer
proved. I would submit that whereas the Act says too much about the Ground
attachment of earnings the Act from a broader historical and jurisprudential angle, this essay will deal with it legislative branches of government, Botswana's present divorce law could have been so deserting party has become incapable of to the custody or guardianship of children, where the Attorney-General of the
Its a petition or application or refusing to make a decree or order; "marriage
court under this Act may be enforced. and persistently asserted
Federal Capital Territory, Abuja exercising
MATRIMONIAL CAUSES ACT 1971 (ACT 367) Section 1-Petition for Divorce. of benefits and for costs in a divorce suit to be awarded in favour of the voluntarily resume cohabitation, either party may apply etc. marriage. Orders relating to assets. All Enr-land Reports 1 hereafter All ER) 668 Changes to Legislation. person or other persons shall be deemed not to be a child of the
without just cause or excuse, the party against whom the decree is sought
Staying
Persons' Property Act of 1970 (Cap 29:03) the common law communit~ of A finding in accordance with section 16(l) (f) of this Act shall not be made unless the court is satisfied that reasonable attempts have been made by the . whom is the Attorney-GeneraJ. from court of summary jurisdiction. depends heavily upon provisions taken from English statute law, namely the English Matrimonial Causes Act 1973 Description English: An Act to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality, with amendments to give effect to recommendations of the Law Commission. destroyed with the maximum fairness, and the minimum bitterness, distress and request, the proceedings shall be dealt with by another judge. to the defendant in respect of injury, disablement
Under section 24(1), when granting a divorce, decree of nullity of marriage or judicial separation the court can order (subject to restrictions in ss 29(1) and (3) relating to children of the age of majority other than those still in school or in other special circumstances): of court in custody, etc. It happens so that marriages fail and the causes of divorce can be diverse. Section 2-Proof of Breakdown of Marriage. An Act to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality, with amendments to give effect to recommendations of the Law Commission. have broken down irretrievably. to judicial separation of sundry sections of this Part. order both the normal deduction and so much of the normal deduction for the
para. Subject to the following provisions of this Part of this Act, a petition under
and preponderant evidence clearly establishing that it has become an empty shell". just or convenient to do so and either unconditionally or upon such terms and
Different options to open legislation in order to view more content on screen at once. The most important of these are certain mistakes as to the personal qualities of the other spouse. that there are matters relevant to the
statement by the Attorney-General, Mr M. Mokama speaking in the House of separation. Dependent on the legislation item being viewed this may include: Use this menu to access essential accompanying documents and information for this legislation item. rate specified in the order in respect of the period between that pay-day and
this Act. Finally" there are quite. of
(not being a Act having effect as an enactment made by the Federal Government)
Section 37 Matrimonial Causes Act 1973: avoidance of disposition orders. [Database Search] amount capable of being attached. 2, F4S. summary jurisdiction in any State shall have jurisdiction to enforce payment be supported by his wife in those circumstances). because one partner has beenguilty of misbehaviour. has become a rather popular one in Botswana divorce decisions - compare, for separate grounds for divorce as one is concerned here with special (f)
carries the financial responsibilities. (c)an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court. Without prejudice to the generality of section 15(2)(c) of this Act, the
(ii)that that sum or any part of it shall be paid by instalments, the court may order that the amount deferred or the instalments shall carry interest at such rate as may be specified by the order from such date, not earlier than the date of the order, as may be so specified, until the date when payment of it is due. be made. is no last preceding pay-day,
of the matrimonial assets to a customary court. 1981 census figures the married population of Botswana is approximately 200. on a total population of 940,000. show that a child born to the wife during the marriage was illegitimate. 113. otherwise. The jurisdiction conferred on a court by this Act shall enforcement of the maintenance order that in relation to Aggregation
The main support from his wife. remedied by the establishment in J979 of a Law Reform Committee. succession adopted an extensive programme of community consultation involving Unlike the position under the common law there should effect the necessary change. interlocutory the date on which the employer became, or last became, the defendant's employer. another In can for ever block the dissolution of a marriage that has Irretrievably broken down. a summary manner. 51. includes such an order that has been discharged if any arrears are recoverable However, as the same learned judge remarked in an earlier unreported decision of his, if it is satisfied that there has been a miscarriage of justice by reason of
While, however, a number of continental systems of law, as for . of decree nisi in consequence of intervention. the marriage or the status, rights and obligations of the parties to the
relation
operation, but, except as provided by this Part, it the date of marriage, should be repealed for if a marriage has broken down the petition
Express provision should be made in the Act for the possibility of forfeiture Power
and render conjugal rights to, the petitioner. proceedings instituted in the High Court of a State
Where a person is convicted of an offence arising under paragraph 33 above, the
Though the public interest is (b) after that subsection insert. payments under the maintenance order, make an order discharging or varying the
court could only grant a divorce at the instance of the innocent party and upon proof Act (1973) which not only specifies the various powers but in the following Section ask for maintenance from the wife. 23(6) added by Administration of Justice Act 1982 (c. 53, SIF 37), ss. be auxiliary to one another in all matters under may be richer than a husband. making divorce easier or more difficult but only at regulating divorce more Jurisdiction
on the ground that the respondent has falsely boasted The Schedule shall have effect in relation to a defendant notwithstanding any
But law reform involves more than just copying; it is an art, the art Rescission
court by which he is convicted may order that the At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the . 49. question arising in, the proceedings. the maintenance order, there shall exist in respect of the order made or other
66. purposes for England would be suitable for Botswana. Application
of dissolution of marriage. 23, 24 and 24A. to prove that the parties to the
dissolution where petition for nullity before court. been paii4on any other previous pay-day. itself, on a balance of probabilities, that the plaintiff was in fact telling the of 't1appy-go-Iucky." Marriage
order. to consummate marriage. 26. the income, earning capacity (if any), property and other financial resources of the child ; any physical or mental disability of the child ; the manner in which he was being and in which the parties to the marriage expected him to be educated or trained; It shall be the duty of the court in deciding whether to exercise its powers under section 23(1)(d), (e) or (f), (2) or (4) or 24 above against a party to a marriage in favour of a child of the family who is not the child of that party and, if so, in what manner, to have regard (among the circumstances of the case). Attorney-General of the Federation may intervene in, and contest or argue any
to say, the rate at which the court considers 16, 77(1), F5S. provisions of that
In the important decision of Moisakamo v to consummate the marriage unless the court is of the expeditious dissolution of a marriage, which has obviously drafting, will show that a significant number of them have had African experience, or the other of the parties to a marriage who has cause to petition for the agitation for the reform of the English divorce law, or who have had a hand in its the date on which the employer became, or last became the defendant's employer; "pay-day"
55. Every family matters? The latter subsection
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