Legal requirement in divorce law challenged

RELEBOHILE TSOAMOTSE

MASERU – The legal requirement that, upon desertion by either partner, a civil marriage can be dissolved ONLY on account of failure to restore marital rights has been challenged. This follows a Maseru couple’s unsuccessful bid to be granted divorce despite following the divorce procedures as provided by the law.

For four years the couple has failed to agree about the restoration of conjugal rights which has resulted in the court failing to grant them divorce. This resulted in one of the partners (the wife) petitioning the High Court (sitting as the Constitutional Court) to intervene.

The ConCourt has been asked to strike down Rule 42 of the High Court Rule No.9 of 1989 for its inconsistence with the constitution. The rule requires that before granting a divorce on account of desertion, it (the court) must first order restoration of conjugal rights, failing which it can go ahead to grant a divorce.

This is usually not a challenge as most partners mutually agree to divorce but this is not the case with one *Mpho (real names withheld) whose husband at first did not contest the divorce but later said he wanted to comply with the restitution order. A restitution order is a direction by the court for a partner to return conjugal rights.

As a result, Mpho has to date not been able to get a divorce. The husband maintains that he is willing to restore her marital rights but Mpho is not interested. Their divorce case remains pending before the High Court but it took a new twist when Mpho approached the Constitutional Court.

She wants the court to cancel the entire Rule 42 of the High Court Rules No.9 of 1989 for being inconsistence with the constitution. The rule speaks to the restoration of conjugal rights, subsection 2 of the rule states that “upon hearing of the action for restitution of conjugal rights, the court may upon proof of malicious desertion of plaintiff by defendant order restitution of conjugal rights and may further direct the defendant to show cause on a day to be named in such order why a decree of divorce should not be granted.”

Mpho says her constitutional rights are being trampled upon by the restoration of conjugal rights. She cites the right to freedom of association and right to privacy, respect for private and family rights arguing that by providing as it does that the court first has to order restoration, the rule infringes on the said rights.

She says it (Rule 42) forces her to have sexual relations with the person she no longer wish to be intimate with against the spirit of the constitution, particularly section 11 which guarantees her right to respect for private and family life.

“The section interferes with my privacy in that it forces me to have sexual relations or intimacy with the person I no longer want to be intimate with. This is also against the spirit and provisions of Section 11 of the Constitution of Lesotho,” she states.

*Mpho adds that the section forces her children to grow in a dysfunctional family as the father is abusive towards her.

“The rights of my family as guaranteed and protected by the constitution are being interfered with adversely by the order of restoration of conjugal rights.

According to her, once the court orders restoration of conjugal rights, it has been persuaded that a case for dissolution of marriage has been made and should therefore order divorce.

“It is my humble submission that once the court issues an order of restoration of conjugal rights, it means it has been persuaded that a case for dissolution of the marriage has been made. It is therefore my humble submission that it is at this stage that the court should grant a decree of divorce once it establishes that there has been malicious desertion.”

Staying in a marriage or requesting her husband to restore conjugal rights not only prolongs an undesirable marriage but also interferes with her dignity and self-respect. “An order that forces my children and I to go back to a family involving an abusive father goes against the constitutional protection of respect for family and home,” she states in her court paper.

She adds: “I no longer have intimate feelings towards the respondent; in fact, I am scared of him. The court a quo heard that I have an interdict against him from a foreign institution. The issuance of the interdict by authorities in SA is proof that the respondent poses a danger to my life. I am no longer desirous of being in marriage with the respondent even if he were to refrain from his abusive ways; I no longer want to be married to him. An order that forces a marital bond upon us is against human rights and dignity. My rights are being violated.”

Mpho also contends that the restoration order infringes against her right to freedom of association as guaranteed by section 16 of the constitution. The section states that no person shall be hindered in his enjoyment of freedom to associate freely with other persons for ideological, religious, political, labor, social, cultural, recreational and similar purposes.

“The issuance of the Restitution order infringes on my freedom to associate; it chooses who I should be in association with. Whilst in essence by getting into the marriage I consented to associate with the 1st respondent and by the same token restricted my association with other people, filing for divorce and subsequently making out a case for divorce indicates my withdrawal of the contest.”

She says her marriage with the husband is beyond repair and tells the court that she no longer has feelings for him. “…I do not have intimate feelings towards him anymore. No amount of counselling, no matter how professional, can resuscitate our marriage. I have over time endured hardship, emotional, physical and financial abuse in this relationship. Its continuance is more detrimental to my person physically, socially, spiritually, financially or in any manner that guarantees my wellbeing.”

For his part, the husband believes their marriage has prospects of success and opposes the divorce. He says he is willing to comply with the restitution order and would rather go for counselling.

On the wife’s plea that High Court Rule 42 be struck down, the husband says the rule does not contravene with anyone’s rights but only seeks to satisfy the court that there has been proof or establishment of the ground of desertion in order to grant divorce.

“I submit that if the deponent held a view that the action for a restitution order is an affront to her constitutionally protected rights, she could not have launched the action against me seeking restitution of conjugal rights. I aver that she cannot in the instance benefit from her own act,” he argued.

He dismisses allegations that Rule 42 infringes on one’s rights arguing, instead, that it does not force revival of dead marriages but only requires proof that the marriage has reached breaking point.

“I submit that Rule 42 does not compel the deponent to engage in intimacy or have sexual relations with a person she no longer wishes to be with. What the rule seeks to do is to have an unequivocal establishment of the fact that the marriage between the litigants is indeed deserving of termination.”

He adds: “. . . the restitution order cannot be interpreted to be an affront to section 16 of the constitution as it is only applicable to the spouse of a plaintiff who institutes an action for restitution. When a spouse no longer wishes to be married to other spouse, there is a remedy of instituting an action for divorce against the other spouse. The grounds for divorce in this jurisdiction are adultery and desertion which ought to be proven by a plaintiff who seeks to have a decree of divorce granted.”

High Court judges, Justices: ‘Maseforo Mahase, Molefi Makara and Keketso Moahloli will hear the case next Thursday (May 20 2021).

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