Platform for Labour Action (PLA)

Ensuring democracy and social justice in the world of work.

  • Divorce is the permanent ending of a marriage.
  • It only applies to legally recognised marriages.
  • The procedure for divorce depends on the type of marriage the parties had.

Separation is a situation where a husband and wife stay away from each other for a given period either because they have agreed or this is known as a separation by agreement or because the court has ordered the separation known as judicial separation.

  • Separation only suspends certain rights of husband and wife but does not end the marriage.
  • The husband and wife are still considered to be married and during the time of separation, none of them can marry another person.
  • Separation cannot go beyond two years.

This divorce applies to those who entered into civil and church marriage.

Before a couple can apply for divorce, they should have been married for at least three years except in situations which are so grave that the couple cannot continue to live together.

The application for divorce is made in the high court.

  • A husband may tell the court that the wife is guilty of adultery.
  • A wife may tell the court that the husband has changed religion and gone through a form of marriage with another woman
  • The husband has committed adultery
  • Cruelty
  • The husband was already married to someone else
  • Husband deserted her for two years without reason
  • Committed rape, sodomy or bestiality
  • The most common grounds are; cruelty, adultery and desertion.

The court will not grant the divorce if:

  • One of the parties conducted him/herself in a way which encouraged the other spouse to commit the offence.
  • The offended spouse encourages the action, agreed with the other spouse to commit the offence, or forgives him or her for the offence
  • Note: the court will not grant a divorce where there is connivance, collusion and condonation.
  • The purpose of this is to discourage people from agreeing to divorce over small issues and destroying the special institution of marriage.

The court first gives a separation order for a period of 6 months (decree nisi). This is a cooling period intended to give the couple a chance to redeem the marriage or determine that they have completely lost interest in the marriage

If the parties have failed to redeem the marriage, the court makes a final order (decree absolute). This permanently ends the marriage.

A couple married under the customary law may apply the customary law of their community to end the marriage.

There are no set rules and guidelines on how this divorce should be undertaken.

The divorce is done according to the customary practices from which the couple hails.

  • Divorce under Islamic law depends on the religious sect to which the couple belongs. Generally, it takes the following form:
  • A husband can divorce a wife by pronouncing the word “talak” three times at a go, after which the marriage would be dissolved.
  • A husband can pronounce the word “talak” once every month for three months and third “talak” ends the marriage.
  • In certain sects, the wife can divorce the husband.
  • The “talak” may be a written word “talakahama” or it may be a spoken word. In order for the “talak” to have legal effect, it must be communicated to the woman.
  • The “talak” should not be pronounced when the wife is menstruating or pregnant.
  • This “talak” when pronounced should be registered with the registrar of marriages and divorce of Mohammedans.

  • Divorce ends the marriage and all rights and privileges that accrue to married people.
  • The court may make orders relating to the division of property and payment of alimony or maintenance of the wife
  • The court may also determine which of the spouse is to remain with the children and provide for the maintenance of the children
  • Under Islamic law, the wife takes the property in her room and the children remain with the father.
  • Divorce means that the two parties become single again and have rights to re-marry any other person of their choice.
  • The divorced people do not benefit from the estate of either of them should one of them die. The relationship is completely terminated.

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