The Ministry of Human Services and Social Security is seeking to reform the laws to allow ‘no fault’ and mutual consent divorces.
Seeking to ensure the needs of the family and particularly the best interest of children, the Human Services Ministry’s Consultation Paper on Reform of Divorce Laws in Guyana contains proposals for divorces without proof of fault on the part of one or more parties. It also proposes mutual consent divorces, where both parties are in agreement as well as divorce without the consent of one party.
As a safeguard, the court would have to be satisfied of a period of at least six months separation in mutual consent cases, while where both parties do not consent there would need to be a separation for at least one year prior to the petition being filed. An archaic provision for the restitution of conjugal rights in the law will also be repealed.
The current divorce law, set out in the Matrimonial Causes Act Chapter 45:02, was introduced in 1916. The paper says it does not reflect the “equality between men and women provided for in our Constitution and are not conducive to preserving family life or promoting the best interest of children of parents whose relationship has broken down.” It noted Guyana and the world have changed culturally, socially, religiously, economically and politically. Although the law was amended in 1953, at the time women were still viewed as the property of and subordinate to men and there was no equality before the law.
Traditionally, the divorce laws were fault based-meaning the party petitioning for the divorce had to prove that the other party to the marriages held the blame for the breakdown of the marriage or committed a matrimonial offence. “The necessity to assign blame and recount the ills of a marriage in order to obtain a divorce has the tendency to perpetuate the differences and tensions in the marriage,” the paper notes. “Parties must relive and recount their failures in order to terminate their relationship.” It said that the object of the no fault divorce is to allow a party to obtain a divorce without the need to rehash in court the problems and failures of their marriage.
Anticipating the criticism that simplifying the laws could increase the divorce rate, the paper argues that the proposition is a fallacy. “Divorce laws do not actually influence the success or failure of a marriage,” it explains. “A failed marriage ends well before a divorce. Making it difficult for the parties to divorce does not preserve troubled marriages but forces the parties to remain in a relationship in a hopeless relationship or in a legal relationship that does not reflect the factual reality, [that is] even though the parties are married they live separately and lead separate and independent lives.”
Should the reform become a reality, it is hoped that there will be a removal of connivance and condonance as prohibitions to dissolution of marriage. It is believed that such prohibitions discourage and punish parties who try to make their marriage work.
Through the reform, the ministry hopes to foster an environment of amicable resolution of contentious issues and mediation by encouraging parties to a petition to settle their ancillary matters prior to the decree absolute being granted. To this end, it proposes a “reflection period” and certain duties will be placed on attorneys to inform their clients of necessary and relevant services.
Additionally, if the parties have children and their ancillary matters have not been settled after the petition had been filed and even after a decree nisi has been granted, a decree absolute shall not be granted until six months have elapsed from the date of the nisi order being made. “This period is to allow the parties time to resolve amicably their ancillary issues. If after the said six months the parties still have not resolved their ancillary matters a decree absolute shall not be granted until the court hears and determines those ancillary matters,” the paper detailed. It also states that if the parties have no children then the mandatory reflection period shall be three months while provisions which place an obligation on the court to hear and determine the matter/s within a certain time would be useful.
Another proposal is to have maintenance be available to wives and husbands with distinction. “Maintenance would be available in all divorce proceedings irrespective of the type of divorcee, [that is] mutual consent or without consent.” The paper made it clear that eligibility of maintenance will be dependent on financial needs, capacity, resources, obligations, responsibilities and circumstances of the parties. And the obligation to maintain will only be until the former spouse remarries or establishes a long-term relationship.
Consultation on the paper will be held on Friday at 4 pm at City Hall.
