BAR TO DIVORCE

Lord Denning said………..God forbid there should be a law without an exception, the same law that provides for divorce for marriages contracted under the Act also provide certain cases where there will be a bar to a petition to divorce That is when will a petition for divorce fails, there are two major instances which are Condonation and Connivance.  

Condonation in law was defined in the case of SWAN V. SWAN (1953) PT 258 @ 271 AER 854 as the reinstatement in his or her former marital position of the spouse who has committed a matrimonial wrong (offence) with the intention of forgiving and remitting on condition that the spouse whose wrong is so condoned does not henceforward commit any further matrimonial offence.

To prove condonation certain element must   be present knowledge, forgiveness and reinstatement, the party who suffered from the wrong must have forgiven and accepted the other party back. In the absence of this defense condonation will fail.

In HENDERSON V. HENDERSON AND CRELIN (1944) AC 49 ER  a husband who knew of his wife’s matrimonial wrong and then had sexual intercourse with her ,in the absence of fraud conclusively presumed to have condoned the wrong.

Also where parties who agreed not to take proceedings  against the other in respect of any offence already committed effectively preclude either spouse from obtaining relief on the ground of such offence and any further matrimonial wrong committed after the date.

KNOWLEDGE; as one of the major features of condonation, knowledge that a matrimonial wrong has been committed in a prerequisite to it being condoned but to this general rule there is an exception, first propounded in KEATS V.KEATS AND MONTEZUNA  that a spouse who suspects the other is guilty of misconduct but does not possess the requisite knowledge may nevertheless condone the misconduct if he agrees to reinstate the other whether or not misconduct has taken place. Therefore to constitute knowledge the innocent spouse must have in his possession evidence of all material facts which would  lead a reasonable man to believe that the wrong has been committed , material fact in these sense comprise not only fact  which would be so regarded by a reasonable man but also fact which the offending  party knows would be so regarded by the innocent spouse.

FORGIVENESS; in this sense is not the christain doctrine of forgiveness is different from the forgiveness spoken by an ordinary man in DENT V. DENT(1865)ER 1455  condonation is strictly a technical word, it had its origin, and so far as I know its entire use, it means ‘forgiveness with a condition’ This notion of forgiveness run through most of the decision. In PEACOCK V.PEACOCK E it was said that condonation signifies forgiveness of a conjugal offence with full knowledge of all its particulars. In the case the other spouse forgave her husband on the ground that ‘he will sin no more’ and that is the legal definition of forgiveness under condonation.

REINSTATEMENT;The guilty party must be reinstated as a wife/husband of the innocent party and the reinstatement must have produced a reconciliation on both sides, continued cohabitation does not necessarily amount to reinstatement.

Connivance is a bar to the grant of a decree of divorce or judicial separation on the ground of adultery,the doctrine of connivance as a bar to divorce was illustrated by TURKER L.J IN WOODBURY V.WOODBURY (1949) ALL ER who said that connivance is based on the principle that the complaining spouse must come to court with clean hands……….he who comes to equity must come in clean hands. And that it would be unconscionable  to give relief to one who had been willing blind to or had encouraged,the adultery of his or her matrimonial partner.

In RICHMOND V.RICHMOND (1952) ER  where two married couples took a caravan holiday together and it was agreed that they should exchange spouses, adultery took place and it was obviously connived at. The present complaint wife gave up her association with the other husband, but her own husband left her for the other wife, who had given birth to his child, and paid no maintenance for his own wife , the divisional court refused these on the ground of adultery as she has earlier connived with the other party.

Connivance implies that the husband has been accessory to the very offence on which his petition is found or at the least has corruptly acquiesced in its commission and the presumption of law has always been against connivance.

I considering the issue of connivance,the inception of the adulterous association may be of great importance……….SOMERVELL L.J

THANK YOU.

OYENIKE ALLIYU-ADEBIYI LLB(HONS)BL