Local attorneys called for ‘No Fault Divorce’ decades ago

Nov 12, 2008 News

…consultations with MPs
forthcoming – Manickchand

Minister of Human Services and Social Security, Priya Manickchand

By Gary Eleazar
Minister of Human Services and Social Security, Priya Manickchand, is currently on a campaign to introduce ‘No Fault Divorce’ and despite the support garnered thus far, there are some who have voiced concern such as President of the Guyana Bar Association Teni Housty.
Housty, during one of the recent consultations on the issue, called for empirical (or experiential) evidence that the ‘No Fault Divorce’ would be good for Guyana.
Several lawyers came out in support of Manickchand’s campaign but the call is not a new phenomenon in Guyana given that more than two decades ago eminent attorneys were already calling for ‘No Fault Divorce.’
This newspaper managed to obtain a copy of the Bar Association Review in 1983 where Muntaz Ali, an eminent attorney practising at the time, had published a call for the introduction of this quality of divorce.
According to Ali, the Matrimonial Causes Act which was enacted in 1916 and dealt with Divorce contained several archaic concepts.
Among some of the examples cited were as restitution of conjugal rights (currently described by leading attorneys as legal rape), jactitation of marriage, prohibiting a person from falsely boasting that he or she is married to a particular person, breach of promise of marriage, enticement and seduction.
“Many of these remedies are virtually obsolete and should no longer be permitted to clog our statute books and should be abolished with the minimum of delay.”
Ali had recommended that the recommendation of the British Royal Commission to the English legislators could serve as a starting point in reforming Guyana’s divorce laws.
In England, prior to 1969, it was necessary for a spouse’ to be guilty of an offence, as in Guyana, before a divorce can be obtained by the other.
This caused the setting up of a Royal Commission on Marriage and Divorce to be set up in England to consider the reform of the law; and practice in matrimonial causes. The Commission concluded that a good divorce law should seek to achieve two objects: To buttress, rather than undermine, the stability of marriage; and
When regrettably, a marriage has irretrievably broken down to enable the empty shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation.
Based on the Commission’s recommendations, the Divorce Reform Act of England was passed and ‘Irretrievable Breakdown’ of the marriage replaced the former matrimonial offences and is now the sole ground of divorce.
Guyana’s laws have been adopted from England but despite the fact that England has reformed its law, this is not the case in Guyana.
At present, for one spouse to obtain a divorce it is necessary for the other spouse to be guilty of some matrimonial offence such as adultery or malicious desertion.
It does not matter that the marriage has broken down completely and the parties are living apart for several years.
It is still necessary for one spouse to be guilty of a matrimonial offence.
Historically, in the Western world, in matters of marriage and divorce, the Church was always considered the proper domain.
For instance, in England, before the Reformation, marriage was regarded by the Church as a sacrament and it was almost impossible to obtain a divorce without recourse to the Pope.
This doctrine of indissolubility of marriage was frequently evaded by obtaining a decree annulling the marriage on certain specified grounds, such as consanguinity or affinity. There is an interesting case of a marriage being annulled by the husband standing Godfather to his wife’s cousin, and yet another by a husband having sex with the third cousin of his prospective wife before the celebration of the marriage.
Fortunately, times have changed, and eventually the dissolution of marriage and related matters came solely within the jurisdiction of the Civil Courts.
No longer is divorce considered a social phenomenon, anomaly or flaw in our system but rather a civil remedy effected by the Courts.
Last week Minister Manickchand commenced a series of consultations to have a national contribution to the reform of the Matrimonial Causes Act and outside forums to be held in Essequibo and Linden, a session is also forthcoming with Members of Parliament.