FAMILY LAW

Course Outline

1. Bars to Divorce
(a) Absolute Bars
(i) Connivance
(b) Discretionary Bars
(i) Petitioners Adultery
(ii) Unreasonable delay
How to determine unreasonable delay
(iii) Petitioners Cruelty
(c) Ancillary Relief

2. Matrimonial Property
(a) Matrimonial Home
(b) Matrimonial Gifts
3. Legitimacy Act 1989

4. Adoption Act 1989

5. Custody of a Child
(a) Matrimonial Offences

6. Registration of Customary Marriage & Divorce Act 2007

Second Semester Page 1

 FAMILY LAW

BARS TO DIVORCE
In order to establish the right to a divorce, a petitioner must prove the facts of his case and must
satisfy the Court that no bar to divorce exists. The bars to divorce are either absolute or
discretionary. Where an absolute bar exists, no divorce can be granted; where a discretionary bar
exists, the Court may grant or refuse a divorce in its discretion.

1. ABSOLUTE BARS
(a) CONNIVANCE – Means permission to the respondent to commit adultery.
(b) CONDENATION – Means forgiveness of the adultery or cruelty concerned together with the
complete reinstatement of the erring spouse as in COOK V COOK 1949
(c) COLLUSION – Collusion is an agreement between the petitioner and the respondent or co-
respondent or their agents concerning the initiation or conduct of a suit provided that it is
made with corrupt intent and tends to prevent the course of justice. There must be some
degree of agreement or support for the conduct leading to the petition. That agreement or
support may be between the parties or with the respondent. In the case of CHURCHYARD V
CHURCHYARD 18955 Pp. 7, the nature of the collusion could be viewed as an agreement
between the parties for the action to be brought. If the parties agree that one of them
should sleep with someone else; it would not be connivances but collusion because it is an
agreement to set up an adulterous petition so as to bring the action or if a party may have
been induced materially or otherwise to doing the action
NOTE: Not all agreements between parties amount to collusion. Certain agreement
considered important and necessary to the course; and therefore do not amount to
collusion. For example, an agreement of maintaince between the action with the intention
of bringing that agreement before the Court. This would not be collusion because it is to
assist the Court and serve time arguing over maintaince that is an Ancillary Relief; which is
separate from the petition for divorce of Marriage; where an arrangement is made in
relation to the custody of the children or the Marital home or other properties. In the case
of NOBLE V NOBLE 1964 1 AER 577 SCAMMER J looked at collusion and said: “for it to
succeed as a bar, there must be a corrupt intention which goes to prevent justice.”
2. DISCRETIONARY BARS
Apart from those absolute bars, there are those which are the discretion of the Court depending on
the circumstances of the case. Section 7(2) CAP 102 of THE LAWS OF SIERRA LEONE. The existence of
these bars does not prevent the Court from granting dissolution.
(a) PETITIONERS ADULTERY - This is the most important of discretionary bars in practice and
provided that a full and frank disclosure is made to the Court; discretion is commonly
exercised in favour of the petitioner. In this case, the Court would exercise its discretion and
make him forfeit his night to relief no matter how serious the matrimonial offence of the
respondent is. This started as a bar in the Ecclesiastical Courts prior to 1885. However if the
petitioner is in such a situation and desires to enjoy the Court’s discretion in his favour; he
has the option to inform the Court of his position in a discretion statement (that is he makes
a full disclosure of his own conduct). This was seen in the case of DECKER V DECKER 1964/66
ALR (SL) 334
(b) UNREASONABLE DELAY – delay in presenting a petition may be reasonable if due to poverty
as in EDWARDS V EDWARDS 1900; or ignorance of the law in POITON V POITON 1922 but

Second Semester Page 2

 FAMILY LAW

otherwise cause’s suspension that there has been something like acquiescence in the
matrimonial offence. Where there has been unreasonable delay; the Court expects a
petitioner to come before the Court within a reasonable time. JUSTICE KARMINSKY in the
case of LOWE V LOWE 1952 2 AER 671 explained that the delay amounting to acquiescence
because the husband who has no reasonable grounds to delay would appear to be
insensitive to the loss of his wife and the injuries done by the other man with whom the wife
lives. This arose again in DECKER V DECKER 1964/66 ALR (S/L) 334. In such serious matters
or complaints as adultery, cruelty and discretion, a delay would obviously raise doubts over
the genuineness of the complaint. However, the delay will be on bar unless it is
accompanied by facts which would show that the petitioner impliedly recognised and
wanted the continuation of the marriage.

HOW DO YOU RECKON THE TIME AND KNOW THAT THERE HAS BEEN AN UNDUE DELAY?
Time needs to run from the knowledge of the offence; when the petitioner knew of the
offence – so sated the Court in the case of JOHNSON V JOHNSON 1901. Notwithstanding, a
delay would not matter in certain situation like;
i. The petitioner believed the respondent has a little time to live
ii. If there was a reasonable hope of a reconciliation. As it is the custom of the
Court to encourage reconciliation and where there is hope of one, delay will
not amount to a bar.
iii. The petitioner was financially incapable of bringing the petition.
C) PETITIONER’S CRUELTY – Whatever the grounds for the **** the cruelty of the petitioner
would always be available. In the case of adultery and cruelty, if the petitioner has without
reasonable cause disserted or wilfully separated from the respondent, the Court will exercise its
discretion against him. There may also be conduct conducing (conduct which in affect led to
what is been complained of) such would be acts of wilful neglect or misconduct which conduced
to the adultery or desertion been complained. In the case of HARRIS V HARRIS 1962 2 SLR 94
the wife committed adultery immediately after the husband deserted. In CUMMINGS V
CUMMINGS 1968/69 ALR S/L series 424, the husband had petitioned for desertion. It was
proved that he had committed adultery and had children by another woman. However, he led
evidence which showed that the adultery was a result of the wife’s desertion. So the Court
granted him the petition and dismissed the wife’s cross petition. In considering such cases, the
Court did explain in DECKER V DECKER 1964/66 ALR S/L series 334 that it must be considered
whether the parties involved in the adultery intend to marry. The Court would consider the
position of the children of the marriage and children of other parties. Also, it should be taken
into consideration whether there are prospects for reconciliation, presence of fraud and what
impact the dissolution would have on the society.

ANCILLARY RELIEF
These reliefs are different from judicial separation. Such reliefs may be for maintenance whether
a lump sum or periodical, custody of children or ownership of property. Section 21 of CAP 102
provides for a separate action where parties are claiming on contest to share property. During
hearing of petition, certain reliefs may be asked for pending a suit that is, ordinary pending suit. Such
payment would end immediately after judgement. This type alimony is different from permanent
alimony after judgement; a lump sum may be ordered once and for all payment which is preferred.

Second Semester Page 3

 FAMILY LAW

In alimony pending suit, the Court would consider the relationship and on the marriage, whether it
was rocky or steady. In that situation, the husband’s income would also have to be taken into
account. That is why section 21(2) and (3) of CAP 102 provides for looking into the availability of the
resources to comply with the Court’s Order. In the case of KLULINSKI V KLULINSKI 1953 1 AER 663,
the Court made reference to the husband’s income to ensure he has money to pay. In all cases, be it
periodic or lump sum, the husband’s ability to pay is of paramount importance. However, the same
idea is behind the Courts ***. Section 21 of CAP 102 states that the order to put parties in the same
position could be renewed but could be terminated on the death of one of the parties or spouses.
Another termination of such orders is where there is a re-marriage, if the woman goes to the new
spouse, if it is the husband who remarries; the Court considers that he has the responsibility of
looking after his wife and the Court will have to review the order. There is time specification for it to
be terminated. In the case of orders for lump payment; they are usually made once and for all
because there is a child and that child would have to be maintained or looked after. If a party stays
in a matrimonial home, then consideration is given to payment of rent for a suitable home for the
one who is outside. In the case of property, there may be the order for transfer of property to the
other spouse and many times the Court is apprehensive of what spouse will have what and may
order the transfer of property to an adult for the child. The Court may also order the sale of property
and proceed divided within the spouse. There is what is also termed “clean Break Order” where an
order has been made and the wife may apply for review of the order. There are times when parties
do not want periodic payments. This may be that psychologically, it may seem as if the marriage is
still subsisting.
MATRIMONIAL PROPERTY
If a dispute arise over property or marriage has broken down, various claims may arise these
claims may be
1. MATRIMONIAL HOME – Include properties generally or gifts. Housekeeping allowance and
properties acquired by either spouse before marriage and those acquired during the
marriage. They’re acquired during the marriage. There is no doctrine on communion of
assets. The question of assets will depend on the relationship of the parties. Both parties may
be using certain properties whilst the marriage subsists but that do not give the other spouse
right of ownership. The fact that “MR A” has three cars and allows “MRS A to use one all the
time does not give her ownership. There could be implied implication. Usually decisions on
such cases are based on equitable principles. In the case of the wife, she ,may hold any
property which is for her as a ROMESO but may assign her beneficial interest to the husband
and the rest in her interest which is for her separate use are sought to be kept out of his
hands. It is assumed that the property of either spouse before marriage is not affected by the
marriage and this will be so even if such properties are in the matrimonial home and used
jointly. But in cases where there is an express gift to the joint interest either in law or in
equity, the position may be different. This was considered by the Court in PATTELLL V
PATTELL 1953 2 AER 32 in this case, the Court went to the extent of dissolving a marriage for
non-consummation arising from impotency of the husband and had to look at the property.
There are situations where the spouse may acquire property within the matrimonial home
and such property is in the name of the other spouse. There is a presumption of
advancement that there can be the situation where a spouse acquire property which is in the
name of the spouse but the other is entitled to it. The court always considered it was

Second Semester Page 4

 FAMILY LAW

intended for the use of both. However, if there is a separation the marriage unless there
something of the contrary the Court. LORD DENNING introduced the equitable approach to
the problem of the matrimonial home in the case of CURB V CURB 1955 2 AER 696 where the
parties provided the initial payment on the mortgage equally. The husband paid the balance
on a weekly basis from his earnings. He however provided no housekeeping allowance but
paid some of the bills. The Court held that the property was held in equal shares. In the case
of HINE V HINE 1962 3 AER 343, the price of the property was £ 3,100,000 and was conveyed
jointly. The wife gave the initial £ 2,000,000. The balance of £1,000,000 was to be paid by a
mortgage taken in their joint names. However, the husband paid everything (that is the
mortgage). The Court considered that since the wife had paid the initial £ 2,000,000 which
was her own money, she should get the £ 2,000,000 back and the balance of the proceeds
shared equally. What may have influenced the Court may be that apart from the £ 2,000,000;
the wife had paid perhaps it considered other non-monetary contributions of the wife. In the
case of FRIBANCE V FRIBANCE 1957, the Court displayed consideration for the no-monetary
contributions made by the wife because the Courts in England looks at interests more
equitably that the wife is entitled to 1/3 of the financial contribution or moral support. In the
case of MIDLAND BANK V COOKE 1994 3 AER, the Court of Appeal in England drew an
inference in escapable, that there should be equal share LORD J WAITE stated that to
determine what share the parties must have intended, there should be a survey of the whole
cause of their dealings with each other as is relevant to ownership, occupation and the
sharing of the burden and advantages. This he considered cannot be limited to direct
contributions. In the case of MIDLAND BANK V COOKE 1994 3 AER, the parents of Mrs Cooke
made a wedding gift of £1000 which money was used as a deposit for a house. Mrs Cooke
made a direct contribution of £ 500. The Court considered that it was not concerned really
with the percentage share she contributed but the share she was intended to have, the Court
considered certain factors: how the parties shared child caring, their business enterprises and
would conclude that they shared house ownership equally. In more recent times, in the case
of DRAKE V WHIPP 1996 1 FLR 826, where the wife provided 19.4 % of the purchase price yet
was held to 1/3 of the share of the property. In the case of GILLET V HOLT 1998 2 FLR 266 or
3 AER 917, the Court of Appeal stated and stressed that the underline principle of what
parties should have is one of fairness. In the absence of an agreement; if the party has made
a substantial contribution in the house, it should in that case create an interest in that
property. Generally, the parties never sit and argue in matrimonial home and so there can be
no agreement for the Courts to work on and would therefore apportion a share which will
reflect the increase in the value of the property. There has been much dispute over the wife’s
claim to stay in the matrimonial home. After divorce, the right of the wife to stay in the
matrimonial home must come up. But one of the duties of the husband is that it is the
responsibility of the husband to provide shelter during the marriage. But that would not
prevent her eviction by a land lord or purchaser for value without interest. This is what led
the House of Lords in the case of NATIONAL PROVINCIAL BANK V AINSWORTH 1968 2 AER
472, their Lordships stated that there is nothing like a deserted wife’s equity. The husband
has deserted the wife and sold the House to a company in which he had interest. The
Company then charged it for a loan from a bank. The mortgagee bank then claimed the
property from the wife who put up a plea that it would be inequitable to be evicted from the
home. That was reasonable as it might be seems to be encouraging the husband from

Second Semester Page 5

 FAMILY LAW

shouldering his responsibility of providing shelter. Locally, there had been a dispute since the
case of TAYLOR V TAYLOR 9150-56 ALR S/L series Pp. 250; thepurchaser failed to take
possession of the house being occupied by the wife. But on a thorough investigation of the
Court is that the purchaser failed because his papers were defective. In the case of
HARDWICKE V JOHNSON & ANOTHER 1978 2 AER 935, the husband’s mother has promised
to but the couples a house. When she found the house which she bought; she told them that
she will pay for the house and then they pay her rent. Four days before the marriage she paid
£ 12, 000, 000 and then conveyed in her name. They paid £7 to her every week and never
stated that it was rent or refund. They continued paying from the 1st April 1973 to the 1st of
May 1974 and then stopped. But the husband’s mother did not press on them for payments
because she knew were in financial difficulty. In January 1975, the mother wrote them
through her solicitors that she had bought the house hoping to receive £ 7 a week but it has
not been forth coming and therefore has decided to take possession and sell. The wife
(daughter – in – laws) offered to pay. The mother’s solicitors wrote the son asserting her right
to occupy the house. The couple had a child but the young man left the home whilst the wife
confirmed to be in occupation. There were no divorce proceedings. The mother – in – law
then took action over the wife claiming possession of property and arrears of rent. The judge
in fact refused the mother. He stated that it was a licence to the son and daughter- in –law
jointly to pay £ 28 per month were either was in occupation. That type of payment was
waived and brought to £ 7 a week which the daughter – in – law was paying from January
1975 and so she was not in breach. The mother then appealed and the Court of Appeal said it
was licence to both of them jointly and not conditional on whether the marriage is
succeeding. The Court said it will be unreasonable to expect if the son went on with another
woman; the wife should be evicted. It dismissed the mother’s appeal because the daughter –
in – law was not in breach of the licence and thus no eviction.
2. JOINT ACCOUNT(S) – Considering the property of the parties would also involve the holding
of accounts. Each party is free to have his or her own account but they may decide to have a
joint account when you have joint account generally, the money put into it is presumed to be
for both parties without any contrary intention. If the husband alone pays into the account
but the wife withdraws from it for housekeeping purposes, prima facie the money belongs to
the person who puts into it. If the wife can at all times withdraw at will or if it is the husband
who withdraws from an account which the wife has paid into; it would be deemed to be
owned jointly. If both parties contribute to the accounting without regard to the proportion
which is deposited into the account; in the absence of evidence to the contrary that account
would be taken to be owned jointly. However, in the event of a dispute; if it is shown that the
intention was that entitlement was to be according to contribution, then whatever is in the
account would be shared proportionally. In the case of JONES V MAYNARD 1951 1 AER 802,
both parties operated a joint account. They were very smart persons and so made
investments individually. The husband paid the salary into the account and also paid his
allowances and rent which he received into. On computing, it was found that the husband’s
contribution were greater. They regarded it as a joint savings but did not agree in their
individual rights. When they divorced, the wife claimed half a share of the account and the
investments the husband made from it. The Court looked at the whole situation and stated
that all money which went into the account immediately becomes joint property. The Court
considers that when the parties have established purse-polling their resources, there would

Second Semester Page 6

 FAMILY LAW

be inconsistency teaming apart that property. When the husband earns and the parties
maintain a common purse; whatever comes into that purse if for both of them. The situation
has to be viewed in another angle where there is a common purse and a party takes from it
for investment purpose without evidence to the contrary, such investment would be
considered to belong to the party doing it. In the case of RE BISHOP 1965 1 AER 249, each
party to make investments and shares were bought; and at times had would be in the name
of the other spouse. The husband used money to take u shares he possessed in the company
in which he was a shareholder. Obviously, it is the husband who should have interest but a
dispute occurred and the matter went before the Court. The Court said that the presumption
cannot be rebutted that each spouse was entitled to shares bought in his or her name. What
was strange in the case, was that it was revealed that after they have accumulated enough
money; they should invest it in their savings.
3. MATRIMONAIL GIFTS – when gifts are made; if there is evidence of the gift to the contrary by
the donor; the gift is prima facie to both parties jointly. In the absence of the intention both
parties will own the property jointly. Where the gift is made without expressing an intention,
the gift itself would tell for whom it is intended. E.g if is jewellery, you don’t ask to whom it is
stated.
LEGITIMACY ACT
Before the Legitimacy Act of 1989, the common law situation was principally recognised once you
are born illegitimate, you remain illegitimate, and one remains illegitimate no matter the
circumstance of your parents. But for many reasons, it was considered expedient to make the
Legitimacy Act because of disputes over children who were born in wed-lock and those not. Children
were born and over a period of time the parents decided to regularize their situation over the
children. To ensure that those disputes were settled legally, the legitimacy act was enacted. From
the preamble it explains. It states: “Being an Act to render legitimate the illegitimate children of
parents who subsequently marry each other and for connected purposes”.
Section 1– It gives a date of legitimation by virtue of the Act. Marriage under the Act means a
marriage recognised by the law in the place where it was contracted. The (b) part did not exclude
Islamic marriage. It does not exclude marriage carried out elsewhere. The term husband and wife
shall be construed accordingly. Therefore, the Act is not the case were illegitimate children remains
so till the end.
Section 2 – subject to the provisions of this section immediately the Act comes into operation. If
Mr A and Mrs A had married before the enactment of the Act, the very moment the Act came into
force; the illegitimate child becomes legitimate.
Section 3 – This section provides for re-registration and that is where a person is claiming by
ancestry to be legitimated. This provides for him petition in the High Court for legitimated. This
entire section has to do with the procedure and it empowers any person without prejudice as
decreed by the Court.
Section 4 – This has to do with the right of legitimated persons to take interests in property. The
myth of the Act is over the property. Subject to this provision; a legitimated person, his spouse,
children and remote issue shall be entitled to take interest. They shall be entitled by descent under
an entailed interest created after the date of legitimation.
Section 4(2) – this section provides for seniority which was a bone of contention before the Act.
Where the right to any property, moveable or immoveable, depends on the relative seniority of the

Second Semester Page 7

 FAMILY LAW

children of any person; the legitimated person(s) shall be rank as if he or they had been born on the
day when he or they become legitimated by virtue of the Act.
Section 5 – This section provides for succession on intestacy of legitimated persons.
Section 6 – This section makes a provision for an illegitimate person who dies before the
marriage of the parents and after the commencement of the Act, his spouse, children or issue with
respect to the taking of interests in property or in succession shall have it applied as if such person
had been a legitimated person and the date of the marriage of his parents had been the date of
legitimation
Section 7– A legitimated person shall have the same rights and obligations of legitimate children
as if he had been born legitimate.
Section 8 and 9
ADOPTION ACT
Up to 1989, there was no clearly defined method of adoption. People copied the procedure of
England were you can just loosely claim adoption of the child. That is, by converting guardianship to
adoption. Act No 9 of 1989 has a simple title and has equally led to a lot of dispute solving
mechanisms.
Section 1– it tells that the High Court has the jurisdiction in such a matte.
 It states that a juvenile is subject to adoption which is under 17years
 It further defines who a “relative” is and what a “will” is.
Section 2 (1) Gives the Court the power to make Adoption Orders by originating summons.
(2) Shows that a joint application by the couples is made to adopt. There can be a
single application made to adopt but the consent of the other spouse is sought.
(3) An Adoption Order made by the father or mother of the juvenile either alone or
jointly.
Section 3(1) – This section pegs the age of the application for adoption as follows:
1(a) must have attained the age of 25 year or at least 21 years older than the juvenile.
(c) Must have attained the age of 21 years and is a relative of the juvenile.
(d) Is the mother or father of the juvenile
Section3 (2) – it states that an adoption order shall not be made in favour of a sole-applicant who is
a male unless the juvenile is a son of the applicant.
Section 3 (3) – it states that an adoption order shall not be made authorising more than one person
to adopt a juvenile.
Section 4(1)- it states that an adoption order shall not be made except with the consent of every
person who is a parent of the juvenile.
Section 4(2) – if the Court is satisfied that the parent has abandoned, neglected or persistently ill-
treated the juvenile or that the parent cannot be found or is incapable of giving consent; that
consent is unreasonably withheld.
Section 4(3) – where there has been a de facto adoption, the Court may dispense with the consent
of any parent of the juvenile
Section 4(4) subject to the conditions with respect to the religious upbringing without knowing the
identity of the applicant, his consent shall be unreasonably withheld.
Section 6(1) (C) Shows protection from trafficking.
Section 11 – Appeals
CUSTODY OF A CHILD
Second Semester Page 8
 FAMILY LAW

Custody involves the right to have or exercise control over child. It does not necessarily mean
possession. It involves education, general maintaince, the power to exercise control and to direct the
child’s religious activities and development and also the right to exercise power of chastisement. In
considering the right of custody; these factors are considered separately or individually. Generally,
under Common Law, the Father has legal control and the mother has physical control. At Common
Law, the father is considered to have absolute entitlement to custody of the child before 21 years.
On the death of the father, the mother is entitled to absolute control. However, the father’s right is
a real sense is not absolute in that in every case, everything pertaining to custody in present times is
subject to the interest of the child. The dispute continues to arise because the father may die but
before his death, he had appointed someone to be his guardian. In the case of RE AGAR ELLIS 1883
24 CH DIVISION 217 COTTON LJ explained that the father’s right was for the interest of the family
and the children. But equity has advanced and influenced the concept of custody making the welfare
of the child of paramount importance. But in modern times, conventions have come up like the
Convention on the Rights of a Child to run contrary to the welfare of the child. With the application
of equity, many fathers have been though the father may not be of a very bad character. The 1873
CUSTODY OF INFANT ACT made an in road into the father’s absolute right and vested in the Court
power and right to grant custody to a mother until the Child is 16 years. Unfortunately, in our own
jurisdiction whilst the welfare of the child is important. It may not be strong. In the more advanced
countries like the United Kingdom; what are considered is residents, contact orders and not as to
custody as the child stays with the mother and the father makes contact with the child. Residents
actually would assist to direct and aid the child’s stable development because by it the Court states
where or by whom the child stays and the contact would relate to what amount of relation or
affiliation. The Court would always consider whether there is any apprehension of danger to the
child. In that respect, the Court would consider whether the child would be exposed to immorality.
Matrimonial Offences would also be considered though it may not be conclusive. However, the
Courts have (contrary to common law) been bending backwards to the unity of mother and child,
even if the father’s behaviour or activities are not inimical to the welfare of the child, the Courts
would still give the mother custody. Since 1883 when the new act was en acted, there has been a
blend of equity and common law in England. The case of WARD V WARD 1849 Pp. 746; the father
was known to be of a noble character and wanted custody of the child but the mother was given
custody (why?). However, misconduct of a parent would not always be a bar to custody of that
parent. It will always depend on the circumstance of the case and the child’s happiness. In the case
of WILLOUGHBY V WILLOUGHBY 1951Pp 184; there was a child of between one and 10* years
whose mother was known to be promiscuous, however she was granted custody. In the case of Re
MUSTAPHA 1920-26 ALR S/L series Pp. 424, there was a petition for dissolution of the marriage. The
husband petitioned for cruelty and the wife cross-petitioned for adultery and the Court found that
the petition for cruelty was not strong enough but affected the health of the children. The husband’s
petition was dismissed and the wife was granted custody. But in Re GILPIN 1972-3 ALR S/L series Pp.
452 the father and mother were in battle for custody of their male and female children. The reason
why the husband was asking for custody was that the mother was unable to take proper care of the
children was she always left them with a nurse who most times was drunk and displayed
incompetence coupled with the fact that the mother worked late. The father as therefore granted
custody. There are situations when the dispute will be between the parents and a third party. In
such situations, the parents are granted liberty subject to proof of incompetence even in the case of
an illegitimate child; the interest and welfare of the child is taken into paramount consideration as

Second Semester Page 9

 FAMILY LAW

seen in the case of Re CLARKE 1964-66 ALR S/L series Pp. 270 even where the child is illegitimate as
between the child and the parent, the parent would have a stronger claim for custody and control
for the overall welfare of the child because it is generally accepted that it is the mother who can say
who the real father is. In the case of Re CLARKE, the natural mother had died and the Court decided
that the grandmother should have custody since the child’s education was not advanced. With
Residence Order, it can be any relation and the parents would make contacts. In the case of
MACOOBY V MNOOKIN 1992 FLR ******* and Re F (children)(shared residence order) 2003 2FLR
164; there was a shared Residence Order made in favour of the mother with a generous contact
order made in favour of the father. In the case of Re EL (CONTACT TRANSSEXUAL APPLICANT) 1995
2 FLR 438, two teenage boys who were making contacts with their father found it uncomfortable to
continue since he had a sex change operation. So, the Court had to order an indirect contact which
will give time for them to come to terms with their father’s sex change after which they will be able
to make direct contact.

REGISTRATION OF CUSTOMARY MARRIAGE AND DIVORCE ACT

In 2007, there was a registration of Customary Marriage and Divorce Act but it really became Act No.
1 of 2009 which provides you registration and that statute interfered to a great extent with
customary marriage and divorce which was nothing new because before the Act, couple were at
liberty to register customary marriage within the chiefdoms and the same was as divorce. One new
thing with it is that it now nullifies forced marriages because section 2(1) paragraph (a) states that
spouse must be 18 and above and must give consent to the marriage. It also provides for marriage
under customary law either spouse. There must be the consent of the parents or guardian if the
spouse is below 18 years and not a widow. But when consent is being unreasonably withheld, the
Magistrate of Chief Administrator (District Officer) of the area could be approached with the facts
and he could give consent. Under section 3 prohibits any person who has married under Christian
Marriage Act, Mohamedan Marriage Act to marry another person under Customary Law Marriage
Act.
Section 3(2) provides that where spouses have simultaneously married in Christian, Muslim, Civil
or Customary laws; they will continue to abide by the law which they have expressly agreed to
Section 6(1) has a requirement which states that the persons co-habiting must be governed by
Customary Law and must be
(a) Above 18 years
(b) Have lived together as husband and wife for a continuous period of 5 years.
Section 6 is deemed to be going against customary law and against
Section 9(1) (c) by bye-passing the requirement of Customary Marriage.

Second Semester Page 10