FAQs

Under the Marriage Act 2014, a party to a marriage can petition the court for a decree for the dissolution of the marriage on the ground of—

• one or more acts of adultery committed by the other party;
• cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage; or
• desertion by either party for at least three years immediately preceding the date of presentation of the petition;
• exceptional depravity by either party;
• the irretrievable breakdown of the marriage

A divorce can take between 6-12 months to be completed.

Parental responsibility means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child. These include the duty to maintain the child and in particular to provide him/her with—adequate diet; shelter;  clothing; medical care including immunization; and education and guidance; the duty to protect the child from neglect, discrimination and abuse etc.

Child custody is defined in the Children’s Act as the parental rights and duties that relate to the possession of the child. Child custody is divided into two:

1. Legal Custody – This is the parental rights and duties in relation to possession of a child as are conferred on a person by a custody order. These include the responsibility to maintain a child.
2. Actual custody – Actual custody of a child refers to the actual possession of a child whether or not the possession is shared with the other parent or any other person. Therefore, whoever the court gives actual custody of the child to, will live with the child.

The court is always guided by the best interests of the child when making a decision on which parent to give actual custody.

Section 83 of the Children’s Act sets out the principles guiding the court in making a custody order. The court must consider the conduct and wishes of the parent or guardian of the child, the ascertainable wishes of the child and the best interests of the child.

Once the courts have taken into consideration everything above, then they will make a custody order. Usually the court is guided by the official report made by a Children’s officer.

Mediation is a facilitative process where an impartial third party assists the parties in resolving their dispute. The mediator uses various techniques to help parties resolve the dispute. Instead of imposing a solution, a mediator helps parties come to a consensus of their own. Mediation is a non-adversarial process which can assist in rebuilding family relationships.

According to the Matrimonial Property Act 2013, matrimonial property means either the matrimonial home, household goods and effects in the matrimonial home, any movable or immovable property jointly owned and acquired during the marriage. However, trust property, including property held in trust under customary law, does not form part of matrimonial property.

Matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses. Contribution can be either monetary or non-monetary i.e. domestic work or management of the matrimonial home, child care, companionship, management of family business or property or farm work.

Where matrimonial property is acquired during marriage:

1. In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse.
2. In the name of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.

Estate Planning is the process of anticipating and arranging, during a person’s life, for the management and disposal of that person’s estate while the person is alive and at and after death. It could also take into account the management of an individual’s properties and financial obligations in the event that the person becomes incapacitated

There are several modes of estate planning namely:

• Trusts
• Wills
• Nominations
• Joint ownership
• Gifts in contemplation of death
• Gifts inter vivos (gifts given during a person’s lifetime which do not form part of the estate of the donor)

Estate planning does not guarantee the absence of family feuds over inheritance but if done well, it can significantly reduce the possibility of their occurrence and preserve the estate left behind.