FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

relationship could be significant but was not the sole

FAMILY 1 SUMMARY factor in defining a family. The dissenting judges
Institutional Nature of the Family argued that family should be based on legal
relationships like marriage, adoption, or blood ties.
- The family is considered the fundamental unit of
society, as highlighted by the United Nations Family Law
Convention on the Rights of the Child (1989), which Family Law governs relationships between children,
states that the family is the natural environment for parents, and adults in close emotional relationships.
the well-being of children. In Hendriks v Netherlands, According to Murphy (2005) and B. Stark (2005), it
UN Human Rights Committee1, it was emphasized that cannot be fully encapsulated by one definition. Family
even though divorce ends a marriage, it cannot law intersects with several other areas such as
dissolve the parental bond, reflecting the institutional taxation, immigration, insurance, and social security,
nature of the family. making it a complex legal field.
Different Types of Families

Families can be classified into various types: Functions of the Family

- Nuclear Family: Parents and their dependent The functions of the family include;
children.
1. Emotional Security. Family members provide
- Extended Family: Includes the nuclear family plus emotional support and care, crucial for children’s
wider kin like grandparents. development.
Legal Definition of Family 2. Development of Identity. Families help
- In Uganda, laws relating to domestic relations do individuals develop their identity, goals, and personal
not provide a specific definition of family. However, character.
Objective XIX of the National Objectives and Directive 3. State Benefit. Strong families contribute to a
Principles of State Policy in the 1995 Constitution of strong state by passing on traditions, values, and
Uganda (as amended) describes the family as the stability. As stated in Huang v Secretary of State for
natural and basic unit of society entitled to protection the Home Department4, human beings are social
by the State. animals, and separation from the family group can
Article 31 of the Constitution guarantees family rights severely affect one’s ability to live a fulfilling life.
but does not define the term "family." Courts often
rely on common understanding, but this can be
LEGAL DEFINITION OF MARRIAGE
ambiguous, as definitions vary across cultural, - Hyde v Hyde and Woodhouse (1866) defined
religious, and personal beliefs. marriage as the voluntary union for life of one man
Judicial Evolution of the Family Concept. and one woman, to the exclusion of others. However,
the definition is more of an ideal since divorce and
- Initially, courts restricted the definition of a family polygamous marriages are legally valid.
to those involving marriage. In Gammans v Ekins2, a
court stated that it was an abuse of language to - Polygamous marriages still fit within the definition,
describe an unmarried couple as a family. However, in as each marriage is between one man and one
Fitzpatrick v Sterling Housing Association Ltd 3, the woman.
House of Lords ruled that a same-sex couple could be - Marriage as a contract which is because of a
considered a family. Lord Slynn emphasized the consensual agreement between parties.
importance of mutual interdependence, shared lives,
care, love, and commitment as hallmarks of family
life. Lord Clyde added that an active sexual

1 3
No. 201/1985 [2000] 1 FCR 21
2 4
[1950] 2 KB 328 [2007] UKHL 11
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

Who May Marry? Defenses to Breach of Promise

- Article 31(1)5 states Men and women of 18 years - False representation, fraudulent concealment, or
and above have the right to marry. bad character can serve as defenses. Mental or
physical incapacity can also terminate the
Requirements in Uganda.
engagement.
- One male and one female,
Damages for Breach of Promise
- Both parties over 18,
- Damages are discretionary, and exemplary damages
- Neither party already married (with exceptions for can be awarded. If a party is at fault, they must return
accepted polygamous marriages), gifts, unless given unconditionally.

- No close family relations.

Promise to Marry and Agreement to Marry DOMICILE

Its a mutual understanding to marry that is
Domicile refers to the place where a person has a
enforceable if one party withdraws without
permanent residence. It is significant in legal matters
justification.
such as determining jurisdiction for issues like divorce,
Unlike typical contracts, they don’t require written where the court must first establish whether the
form and can be inferred from conduct. In Larok v petitioner is domiciled in Uganda (see Section 1 of the
Obwoya (1970) where a man breached his promise to Divorce Act). Even though a person may be
marry a woman after impregnating her, and the court temporarily absent, they must have the intention to
awarded damages. return for it to remain their domicile.

Promises by Minors are voidable at the minor's There is no universally agreed definition of domicile,
discretion; a minor can sue but not be sued for breach but case law offers useful explanations:
of promise to marry.
- In Whicker v Hume (1858), Justice Cranworth
Legal Defenses and Cases for Breach of Promise described domicile as the place "from which you
cannot be separated unless something removes you."
- Public Policy. Promises to marry while one is already
married or awaiting annulment are unenforceable. In - Justice Wensleydale stated that it is where a person
Fender v. St. John-Mildmay6, a promise to marry after lives with the intention of staying permanently unless
a decree nisi (preliminary divorce order) was circumstances change.
enforceable.
- In Lord v Colvin7, Lord Kindersley explained that
- Islamic Law where marriage promises may be domicile is where a person voluntarily fixes their
entered by parents, but there are no contractual home with the intention of making it permanent,
obligations between the spouses until marriage. Only unless something unexpected occurs.
gifts or ornaments can be returned if the promise is
According to Halsbury’s Laws of England, domicile is a
broken. In Fazaldin Satardin v Din Mahomed (1928), a
legal relationship between an individual and a
man was allowed to recover gifts after the woman's
territory with a distinctive legal system that invokes
father arranged a marriage without her consent.
that system as their personal law. Even without a
- Hindu Law. Parents often arrange marriages, but free permanent residence, a person is still assigned a
will is emphasized. In Vishram Dhanji v Lalji Ruda domicile by law or implication.
(1957)**: The court voided a marriage contract
arranged by the parents of a girl, emphasizing that
free will is required in marriage. There are three types of domicile:

5 7
the Ugandan Constitution (1859)
6
(1938)
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

1. Domicile of Origin which is the domicile a person Nationality typically does not change unless through a
acquires at birth, which is usually based on the legal process like naturalization.
domicile of their father (if legitimate) or their mother
Key Differences:
(if illegitimate). In Udny v Udny (1869), the House of
Lords ruled that no person can be without a domicile. - Change. Domicile can change by establishing a
The domicile of origin is attributed at birth and new permanent residence, while nationality
remains until a new domicile of choice is established. usually requires a formal process like
naturalization.
2. Domicile of Choice. A person can acquire a new
domicile by moving to a different place with the
intention of residing there indefinitely. In Udny
(supra) Lord Westbury explained that domicile of - Legal Context. Domicile determines a person’s
choice is determined by a person voluntarily choosing personal law, while nationality defines their political
to reside in a place with the intention of staying and legal status within a country. For example, a
indefinitely, not influenced by external necessities like Ugandan citizen (nationality) may acquire a domicile
creditors or illness. Halsbury’s Laws (3rd Edn., Vol. 7), of choice in the UK if they move there with the
cited in Thornhill v Thornhill (1965), stated that intention of staying indefinitely, while retaining their
domicile of choice is acquired when a person resides Ugandan nationality.
in a new country with the intention of living there
indefinitely. In Field v Field (1964), this principle was
further emphasized. PRELIMINARIES OF A MARRIAGE
3. Domicile by Law. This is assigned by law, without 1. Sex: Parties to be Male and Female. Article 31 of
regard to a person's residence or intentions. Those the Ugandan Constitution only allows marriages
under the control of another (e.g., minors, lunatics) or between a man and a woman. Same-sex marriages
specific groups like public servants and prisoners are not recognized. The issue of sex change arises
acquire a domicile by law. with modern technology. In **Corbett v Corbett 8it
was held that marriage is a relationship between a
- A wife traditionally takes her husband's domicile,
biological man and woman, meaning that a sex
though she can voluntarily change it. Similarly, minors
change would not affect biological sex for marriage
and lunatics take their father’s domicile, or the
purposes.
mother’s if the father is deceased.
2. Age: Parties Must Be Over 18. Article 31 of the
- Public servants, such as diplomats or soldiers,
Constitution sets the marriage age at 18 and above.
retain their domicile of origin despite serving in other
However, the Customary Marriage (Registration) Act
locations.
s.11 allows for a female to marry at 16 and a male at
Domicile vs. Nationality 18, causing a legal discrepancy. In Pugh v Pugh [1951],
it was stated that child marriages are socially and
Although domicile and nationality often overlap, they morally wrong due to the immaturity of the
represent different legal concepts: participants.
1. Domicile refers to a person's permanent home or
3. Neither Party Already Married. Marriage under the
residence and governs which legal system applies to Marriage Act is monogamous. A person cannot marry
personal matters, like family law and inheritance. It is again unless the first marriage is dissolved or the
changeable based on where a person chooses to spouse dies. In Ayoob v Ayoob9, a Mohammedan
reside and their intention to remain there indefinitely. marriage was recognized under Mohammedan law
2. Nationality refers to a person's legal relationship but was declared distinct from monogamous marriage
with a state, indicating their citizenship. It establishes under the Marriage Act. Mohammedan marriages
rights and responsibilities within that country, such as allow for polygamy.
the right to vote or the duty to serve in the military.

8 9
[1970], [1967].
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

4. Prohibited Degrees of Kindred and Consanguinity. - Void Marriage is regarded as never having existed.
Marriages are prohibited between parties related by
- Voidable Marriage ae valid until annulled by court
blood (consanguinity) or marriage (affinity). In Cheni v
decree. In Hudson v Leigh [2009] 3 FCR 401 case
Cheni [1962], a marriage between an uncle and niece,
identified factors for determining if a marriage is void
valid under Egyptian and Jewish law, was upheld in
or a "non-marriage";
the UK as not offensive to the court’s conscience.
Further In Bruno L. Kiwuwa v Ivan Serunkuma and - Ceremony’s intention and form.
Juliet Namazzi [2006], the High Court of Uganda
barred a marriage under the Marriage Act because - Participants' beliefs and understanding.
the couple belonged to the same clan, which violated - Event's similarity to a traditional marriage.
local customs. This decision was later challenged by
the Supreme Court. Further refer to cases of;

- Re Spence [1990] 2 FLR 278 where it was held that

Void marriages are considered a nullity and have no
5. Consent in Marriage. Article 31 of the Constitution legal effect from the outset.
requires free consent from the parties. If one party is
under 21 years, the Marriage Act, s.17, and Customary - Whiston v Whiston [1995] 2 FLR 268 held that a void
Marriages (Registration) Act, s.32, require written marriage remains valid until confirmed as void by a
parental consent. In Parojcic v Parojcic [1959], the court.
court granted a decree of nullity on the grounds of Further section 12 of the Divorce Act provides the
duress, where the petitioner was forced to marry due grounds grounds for declaring a marriage void:
to threats from her father, despite understanding the
ceremony. - Permanent impotence of a spouse.

- Marriage within prohibited degrees of

consanguinity or affinity.
MARRIAGE VALIDITY AND LEGAL
- Mental incapacity of either party at the time of
DISTINCTIONS marriage.
Marriages are categorized into three types: valid, void, - Existing marriage of one party at the time of a
and voidable. subsequent marriage.
1. Valid Marriages. These are legally recognized and - Consent obtained through force or fraud.
can only end through divorce or legally authorized
separation.

2. Void Marriages. Treated as never having occurred. Also Section 34 of the Marriage Act provides the
They are legally non-existent both de facto and de grounds for a marriage being void as;
jure. There is no need for a court decree to declare
- Celebration in an unauthorized location.
them void.
- Use of false names.
3. Voidable Marriages. Initially considered valid but
can be annulled due to specific irregularities. A - Absence of registrar’s certificate or minister’s
voidable marriage remains valid until a court grants an license.
annulment.
- Officiation by an unauthorized person.
Legal Distinctions

De Reneville v De Reneville10 established the

Section 13 of the Customary Marriage Registration Act
difference between void and voidable marriages.
provides that a subsequent marriage under the

10
[1948] 1 ALLER 56, 60 CA
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

Marriage Act is void if a customary marriage has Bars to Grant of Relief of Nullity;
already been contracted.
Approbation of Voidable Marriages and Collusion
Voidable Marriage Grounds include;
- Approbation: Continuing to live as if married or
- Non-consummation whis is seen in Incapacity. Either accepting benefits under the marriage can bar the
physical or psychological (e.g., frigidity). This can be grant of nullity if done knowingly. In K v K12, where
seen through Wilful Refusal where one party refuses living with the spouse and paying debts was deemed
to consummate the marriage. Wilful refusal refers to a approbation by overt acts.
deliberate and definite decision not to consummate a
- **Case Reference**: *Scott v Scott* [1959] 1 All ER
marriage without justifiable cause. It implies a settled
531, where delay in petitioning for nullity after living
intention to avoid consummation. Horton v Horton
together for years was considered approbation.
[1947] 2 All ER 871, where Lord Jowitt explained that
"wilful refusal" should be determined by considering The Legal Effect of Marriage
the entire history of the marriage. Consummation's
delay due to external factors like war does not Traditionally, marriage conferred significant legal
necessarily constitute wilful refusal. effects on the individuals involved, often reinforcing
patriarchal norms.
- Mistake where a marriage can be voidable if there is
a mistake regarding the identity of the contracting Blackstone's View is that marriage rendered the
party or the nature of the ceremony. Mistakes is woman’s legal identity subsumed under her
categorized as; husband’s.

Mistake as to Identity. If one party mistakenly marries However, changes in law have reduced these
someone else, the marriage is voidable. Cases include traditional inequalities. Example: Sheffield City Council
C v C [1942] NZLR 356 and Militante v Ogunwomoju v E and another13.
[1993] 2 FCR 355. Legal Effect include;
Mistake as to the Nature of the Ceremony. If a party is - Bigamy. Marrying while still in another marriage
misled about the nature of the marriage ceremony, constitutes bigamy (S.41 of the Marriage Act).
the marriage can be annulled. Example: Valier v Valier
(1925) 133 LT 830. - Adultery. Sexual intercourse outside marriage is
considered adultery (Ss 12(d) of the Divorce Act,
- Fraud where concealment of material facts like 10(1)(d) of the Marriage Act).
religious beliefs can be grounds for annulment. In
Tatiana Adebiyi v Adebi Adenji [1900—1991] KALR 36, - Right to Use Husband’s Name. A wife may adopt
where fraudulent concealment of faith led to the her husband's name but is not obligated to do so
marriage being declared void. (Fedalal v Goldsmith14.

- Fear and Duress. Marriage under duress is voidable. - Presumption of Legitimacy. Children born during a
Duress includes physical threats or extreme emotional marriage are presumed legitimate (Preston Jones v
pressure. In Buckland v Buckland11, where fear of Preston Jones (1956) 1 All ER 124).
prosecution was found to vitiate consent.
MARRIAGE FORMALITIES
- Consent. Lack of genuine consent makes a marriage
Purposes of Marriage Formalities
voidable. Both parties can challenge the validity of a
marriage if consent was not freely given. The right to 1. Formalities help differentiate between a marriage,
rectify a marriage by obtaining true consent means engagement, and cohabitation agreement.
that third parties cannot invalidate a marriage without
addressing this issue first. 2. They ensure marriage is entered into with proper
consideration, reinforcing its solemnity. In Dancer v

11 13
[1968] P 296 [2004] EWHC 2808.
12 14
1960] EA 717 (1877) 2 PD 263).
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

Dancer15, it was held that using a name under which a and 6 pm, and in the presence of at least two
person was widely known for the publication of banns witnesses (S.21).
did not constitute undue publication, demonstrating
- Must present a registrar’s certificate or minister’s
how formalities help reinforce the seriousness of the
license if impediments exist.
marriage process.
B. Civil Marriage
3. Formalities provide a formal record of marriages.
Islam v Islam16 highlights the role of formalities in Requirements
ensuring a formal record of marriages.
- Celebrated before a registrar with two witnesses
4. They allow for objections to the marriage. In Puttick present, between 10 am and 4 pm (Ss.12 and 26).
v AG17 illustrates how marriage by banns involves
public notification, allowing for objections. - Registrar issues a marriage certificate signed by the
parties and witnesses (Ss.24 and 27).

Purpose of Open Doors is to ensure public awareness

PRELIMINARIES TO MARRIAGE of the marriage.

1. Residence. Notice of intended marriage must be In Puttick v AG [1979] 3 WLR 542 emphasizes the
given to the Registrar in the district where one party difference between marriage by banns (which
has resided for at least fifteen days (S.6). requires public notification) and marriage by license
(which focuses on identity).
2. Publicity. Notice must be entered in the Marriage
Notice Book and publicly displayed for three months C. Mohammedan Marriages
or until a certificate is granted (S.9(1)). A 21-day
Law Applicable
period is required after the notice is lodged before
marriage (S.10). In Small v Small18 shows the impact of - The Marriage and Divorce of Mohammedans Act
not properly publishing marriage banns on the validity
- The Marriage and Divorce of Mohammedans
of the marriage, emphasizing the importance of
(Appointment of Registrars) Order
adhering to publicity requirements.
- The Marriage and Divorce of Mohammedans
Objections can be lodged by entering a caveat (S.13).
(Jurisdiction in Matrimonial Causes) Instrument
The Registrar must refer unresolved objections to the
High Court (S.14). In Chipchase v Chipchase addresses - Sharia Laws or Islamic Laws
the consequences of failing to properly publish banns,
highlighting the significance of resolving objections
through the legal system. Primary Requirements
3. Discovery of Impediments. Check for impediments - Mutual Agreement (Ijab-O-Qubul). The bride and
like kindred or affinity. groom must agree to the marriage.

- Witnesses. Two adult and sane witnesses are

required.
CELEBRATION OF MARRIAGE
- Mahr (Marriage-Gift). Paid by the groom, can be
A. Church Marriage immediate (muajjal), deferred (muakhkhar), or a
Requirements: combination.

- Celebrated in a licensed place of worship by a Secondary Requirements

recognized minister, with open doors between 8 am - Legal Guardian (Wakeel) who represents the bride.

15 17
[1948] 2 All ER 731 [1979] 3 WLR 542
16 18
[2003] FL 815 (1923) 67 SJ 277
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

- Written Marriage Contract (Aqd-Nikah) which is and emphasizes that harmful customs should not be
signed by both parties and witnesses. maintained.
- Qadi or Ma’zoon who is a responsible person Void and Voidable Marriages
officiates the marriage.
- Gakwavu v Mariana Gasenganyire21 validates
- Khutba-tun-Nikah which is sermon to solemnize the customary marriages contracted before the
marriage. introduction of the Customary Marriages
(Registration) Decree even if the marriage was
polygamous.
D. Customary Marriages
- Nassanga v Nanyonga22 held that non-registration
1. Law Applicable: does not invalidate a customary marriage.

- Constitution of 1995 as amended. Further section 11 of the Customary Marriages

(Registration) Act lists lists grounds for void marriages,
- Customary Marriages Registration Act. including age, mental capacity, consanguinity, and
- Customary Marriages (Registration.) Prescription of prior monogamous marriages.
Forms and Fees Regulations SI.
SUSPENSION AND TERMINATION OF
- Customary Laws of Various Tribes and Case Law MARITAL OBLIGATIONS IN UGANDA
- The Marriage Act 1. Death. The death of either spouse automatically
- Judicature Act terminates the marriage. Traditionally, if a spouse was
presumed dead (e.g., if they disappeared), the
Nature of the Marriage surviving spouse could remarry without committing
- Polygamous Nature. Customary marriages are bigamy. If later it was proved the spouse was alive,
potentially polygamous19. the second marriage would be void. This principle is
reflected in the traditional understanding of marriage
Preliminaries to the Customary Marriage dissolution by death. Section 39 of the Divorce Act
Cap implies dissolution by death and permits
- Bride Wealth which is a token of gratitude to the
remarriage. Estates of Missing Persons Management
bride’s family.
Act Cap. 159 setting a three-year period for estate
- Consent where both parties should consent to the administration.
marriage. Consent of the bride is crucial. Pamela
2. Mutual Agreement and Separation. Spouses can
Sabina Mbabazi v Henry Bazira20 Underscores the
agree to live apart, and such agreements are binding
necessity of consent from both parties to the
until reconciliation or divorce is pursued. Ringsted v
marriage.
Lanesborough23 established that a separation
- Age of Marriage as the Bride (16 years), Groom (18 agreement binds both parties as if they were single.
years). Marriages below these ages are void. This case highlighted that the wife could not hold her
Tumwesigye JSC in Mifumi (U) Ltd & Another v husband responsible for debts incurred during
Attorney General & Another discusses the need for separation, reflecting how separation agreements
justification of customs, including age requirements, affect legal and financial responsibilities.

19
John Tom Kintu v Myllious Gafabusa Kintu (High
20
Court Divorce Appeal No. 135 of 1995), It was held (Civil Appeal No. 44 of 2004)
21
[1977] HCB 322
that a person married under customary law can marry 22
[1977] HCB 314
more wives under the same marriage without 23
(1783)
committing adultery, provided the other party is also
legally married under customary law.
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

Lister’s Case confirmed that separation agreements In Malin v Versani Divorce Cause no. 2 of 1962 held
could bind parties and grant separate maintenance. that adultery is often proven by circumstantial
This principle underscores that separation agreements evidence rather than direct evidence.
do not end the marriage but define how the spouses
Further in Dr. Specioza Kazibwe v Eng. Charles
live apart and manage responsibilities.
Kazibwe25. Adultery can be proven by circumstantial
Judicial Separation evidence or admission.

Principle: Judicial separation is a court decree that 2. Cruelty

allows spouses to live apart while remaining legally
Cruelty involves conduct that causes actual or
married. This remedy is used when divorce grounds
reasonable apprehension of harm to the other
are not met.
spouse's physical or mental health.
Nunzio Colarossi v Michelina Colarossi [1965] 1 EA
Proof
129 demonstrated the grounds for judicial separation
under cruelty, adultery, or desertion. - Veronica Habyarimana v Perfect Habyarimana
(supra): Cruelty must cause actual or apprehended
Also Gakwavu v Gasengayire [1977] HCB 322:
harm beyond the usual wear and tear of marriage.
Provided an example of the application of judicial
separation grounds. 3. Desertion
3. Divorce Desertion occurs when one spouse leaves the
matrimonial home with no intention of returning for a
Divorce involves the legal dissolution of marriage by a
period of two years or more. It can also occur if the
court. The law consolidates divorce provisions under
parties live together but are not in a marital
the Divorce Act. In John H R Thornhill v Islay Thornhill
relationship.
& another24 it emphasized the need for domicile in
Uganda for the court to grant a divorce, reflecting Proof
jurisdictional requirements.
- Rose Katungye v Salex Katungye26. Desertion
Also Uganda Association of Women Lawyers and requires de facto separation, intention to desert
Others v Attorney General (Constitutional Petition No. (animus deserendi), absence of consent from the
2 of 2003) clarified that divorce grounds apply equally deserted spouse, and no reasonable cause for leaving.
to both spouses, reinforcing that the legal grounds for
divorce are not gender-specific. Bars to Divorce

Grounds for divorce Absolute Bars

1. Adultery Factors that definitively prevent a divorce if they are

present.
Adultery involves voluntary sexual intercourse
between two people, where at least one is married to Types
someone else. - Collusion. When the petitioner fabricates or
Proof manipulates evidence to obtain a divorce, or when
the petitioner sets up conditions that lead to the
- Veronica Habyarimana v Perfect Habyarimana respondent committing a matrimonial offense.
[1980] HCB 139: Adultery must be proven to the court Example In Churchward v Churchward, collusion was
with a high degree of probability, and it's not a found when a settlement was made to enable divorce.
criminal offense unless the person is married to
someone other than their partner. - Condonation: Forgiving a marital offense and
resuming cohabitation, which bars the use of the
forgiven offense as grounds for divorce. Example in

24 26
[1964] 1 EA 616 (1999) KALR 891
25
Divorce Cause no. 3 of 2003
FAMILY LAW 1 SUMMARY BY MOSES YAZAAMA 0751067285

Cramp v. Cramp, sexual relations after knowing about 5. Permanent Alimony. Ordered after the decree
the spouse's adultery were seen as condonation. absolute, considering the wife's financial status, the
husband's ability to pay, and the parties' conduct. It
- Connivance: The petitioner’s involvement or
can be in lump sum or installments and may be
encouragement of the respondent’s marital offense.
altered by the court.
Example in Godfrey v Godfrey & Wall*, the husband's
acceptance of his wife’s adultery was seen as Divorce under Customary Marriage
connivance.
- Termination follows tribal or community customs,
Discretionary Bars which must be fair and just. The rules are subject to
constitutional rights.
Factors where the court may choose to grant a
divorce despite the presence of a bar.

Divorce under Islamic or Mohammedan Marriages

Types 1. Extra Judicial Divorces: Divorce outside the court,

discouraged and only allowed after reconciliation
- Unreasonable Delay. Delays in filing for divorce
attempts fail. Includes:
without valid reasons may result in dismissal.
Example: Binney v. Binney was dismissed due to a 20- - Talaq. Divorce initiated by the husband.
year delay.
- Talaq-i-Ahsan. Single pronouncement followed by
- Petitioner’s Own Adultery. The petitioner’s own abstinence.
adultery may be considered but is weighed against
- Talaq-i-Hasan. Three pronouncements over three
several factors, including the welfare of children and
months.
the possibility of reconciliation. Example: In Blunt v.
Blunt, the court considered multiple factors before - Talaq-i-Bidat. Instantaneous and not approved by
deciding on the petition. Quran or Hadith.
- Conducing Conduct. Conduct by the petitioner that Conditions for Talaq
leads to a marital offense may bar them from
obtaining a divorce. Example is Dixon v. Dixon - Husband: Must be of age, sane, not intoxicated,
involved a refusal of intimacy leading to the other and have clear intention.
spouse’s offense. - Wife: Must be of age, sane, and in a state of purity.
Orders Obtained on Grant of Divorce Judicial Divorce. Requires registration under the
1. Decree Nisi: An interim order indicating the court is Marriage and Divorce of Mohammedans Act within
satisfied with the grounds for divorce, giving time for one month, though failure to register doesn’t
reconciliation. It is a cooling-off period. invalidate the divorce.

2. Decree Absolute: Final order issued six months after

the decree nisi, making the divorce permanent unless
evidence is presented to prevent it.

3. Costs: Under Section 2227, costs may be awarded if ****END****

adultery by the respondent is proven.
4. Alimony Pendant Lite. Temporary maintenance
awarded during divorce proceedings, limited to a fifth
of the husband's average net income.

27
the Divorce Act