Bars to Divorce

Bars to Divorce

Although rarely discussed by litigants and lawyers, courts have a duty to satisfy themselves that there are no bars to granting a divorce in any divorce application.  Before granting a divorce, the courts must satisfy themselves that:

1. There has been no collusion in relation to the application for a divorce;
2. Reasonable arrangements have been made for the support of any children of the marriage; and
3. Where a divorce is sought on adultery and/or cruelty grounds, that there has been no condonation or connivance on the part of the spouse bringing the proceeding, unless the court is in the opinion that the public interest would be better served by granting the divorce.

This blog will mainly focus on the first and third bars.

Collusion

Collusion means a situation where the parties agree or conspire to subvert the administration of justice.

For example, collusion may be found where the parties have only known each other for a brief period of time, the marriage was never consummated, and a party stands to gain immigration status by marriage^[1].  Marrying a foreigner to help them with their citizenship and being paid for that marriage could be considered an agreement to subvert justice.^[2]

It is important to note that if a divorce is refused due to collusion, a subsequent divorce application on the same grounds will be barred, but the application may be considered on a different ground (i.e. length of separation).

Condonation

Condonation requires three elements:^[3]

1. Knowledge by the innocent spouse of the matrimonial offence which has been committed by the other spouse;
2. An intention by the innocent spouse to forgive and remit the offence; and
3. The reinstatement in their marital position of the guilty spouse by the innocent one.

Even if there was condonation found, the court has a residual discretion to grant the divorce if they are of the opinion that public interest would be better served by doing so. Cases where this discretion has been exercised include where a marriage has been unhappy and has no chance of bringing benefit to anyone if it is forced to continue^[4], and where the parties have children and it would not be in the best interests of the children to constantly see their parents quarrel.^[5]

Connivance

Connivance means that a matrimonial offence has been caused by, or has been knowingly, willfully, or recklessly permitted by the other spouse.^[6]

Connivance was found where a husband hired a private detective who procured the wife’s adultery by getting her drunk.^[7]  Connivance was also found where a husband who believed his wife was about to commit adultery, waited and watched the offence without intervening.^[8]

As with condonation, courts have a residual discretion to grant a divorce even where connivance is found, if they are in the opinion that the public interest would be better served if a divorce is granted.

Conclusion

Although most divorces are now granted on the grounds of separation, parties need to be aware that if they wish to divorce on other grounds, the courts will consider whether there are any bars to divorce.  If there are, the courts must refuse to grant the divorce if there is collusion.  The courts may refuse a divorce on the grounds of condonation or connivance, but have a residual discretion to grant the divorce if it is in the public interest to do so.