Divorce
Editorial
Stabroek News
April 22, 2007
Last week President Bharrat Jagdeo and First Lady Varshnie Jagdeo made public their intention to end their marriage. They described it as an amicable parting, saying that the only reason for their decision was that they had grown apart over the years. It was a dignified announcement, fully in consonance with their positions as the first couple of this land, and one imagines that everyone would wish to respect their desire to keep their personal lives, personal.
It is the very civility of their tone, however, which draws attention to an area which has been neglected for decades, and that is the law on divorce. As things stand, the law makes no provision for an amicable parting of the ways by spouses; it harks back to an older era when the breakdown of a marriage had to be somebody's fault. As we reported in our edition of Tuesday, April 17, the governing statute in this instance is the Matrimonial Causes Act, Cap 45:02, which barring certain special circumstances such as mental illness, provides three grounds for a husband or wife to petition the court for a divorce, namely, adultery, cruelty or malicious desertion (with or without adultery) for two years or more.
The original act - which has been amended, more particularly in the 1950s - came into being in 1916, and probably for its time it may even have been viewed as fairly progressive. Certainly in early nineteenth-century England divorce was, if not quite impossible, then extremely difficult to obtain unless one were first of all male, and in addition had money, status and contacts in Parliament. The situation began to change slowly, starting in 1839 and continuing with the 1857 Matrimonial Causes Act. Under this latter statute, a man could petition the court for divorce on the grounds of adultery by his wife, although a wife in contrast would in addition have to prove either incest, bigamy, cruelty or desertion on the part of her husband before she could get a divorce.
The gradual liberalization of the law as the century progressed reflected the slow improvement in the status of women, one milestone being the Married Women's Property Act of 1884, which allowed women to own property in their own right for the first time.
While for many matrimony is a holy commitment made in a religious context, this is a personal matter, since as far as the law is concerned marriage represents a civil union. Different religions have taken varying approaches to the question of whether and under what circumstances the state of matrimony can be ended, and if having done so remarriage is possible for the parties involved, but whether a spouse chooses to adhere to a particular faith's teaching on divorce is again a purely personal decision. As far as the secular law of the land is concerned, divorce and legal separation have been available to citizens on application to the courts for a very long time, so the issue really is what should constitute reasonable grounds for ending a marriage in the modern era.
Many western countries amended their divorce laws decades ago, one of them being England, which no doubt provided the original model for our 1916 ordinance and probably for most of the later amendments as well. However, while Guyana's law on divorce has more-or-less stood still since colonial times, England's has moved on. The reform came more than three decades ago in the shape of the Matrimonial Causes Act of 1973, which removed the blame element from the law, making irretrievable breakdown the sole ground for divorce. A spouse petitioning the court must still be able to prove that there are grounds for saying the marriage is at an end, those grounds being adultery; unreasonable behaviour; desertion for two years prior to the petition; separation for two years by mutual consent prior to the petition; or separation for five years without the consent of the other spouse. In addition, before a couple can petition the court they have to have been married for at least a year.
Of course other portions of the law deal with the issues surrounding the children of a marriage, maintenance and the division of property, but those are not the immediate concern here. The fact that one removes the 'fault' assumption in the law does not make these matters any easier of solution in all cases, although it might well improve the atmosphere for seeking a mutually acceptable settlement.
The point is, however, that the current law in Guyana is antiquated and inappropriate for the times in which we live; it is simply not acceptable nowadays to have as the only grounds for a divorce or legal separation cruelty, desertion or adultery with their assumptions of blame. Prior to 1973 in England, a whole industry had grown up to supply what was to all intents and purposes fabricated evidence of adultery which could be presented in court, so a couple whose marriage by mutual consent was at an end, could get a divorce. One suspects that here too couples sometimes have to 'manipulate' evidence so it corresponds to the grounds provided for in the law, even though neither might be 'guilty' of what the act specifies, or in the case of adultery would prefer to avoid dragging the names of co-respondents into court. In other words, the law as it stands is simply encouraging hypocrisy and worse.
Human affairs are inevitably messy, and ending a marriage is frequently so. Those couples who have been married for some years, know they have reached a point of irretrievable breakdown and agree that the rational course of action is to seek a separation or divorce which is as free from acrimony as possible, should be able to do so. Since this aspect of the law affects so many ordinary people, one would hope that the legal authorities after consultation with various interested groups in the society and a review of what obtains in other lands, would be able to draft appropriate amendments to the Matrimonial Causes Act.