MzAgams

Cruelty is an old common law ground for divorce which does not exist under the Matrimonial Causes Act but can be used to establish that the respondent has behaved in ways that the petitioner can no longer be reasonably expected to live with him or her as provided in section 15(2)(c) which states as follows:

“15(2) the Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or more of the following facts-

(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. ”

Lord Pearce in Gollina v. Gollina said “It is impossible to give comprehensive definition of cruelly, but when reprehensible conduct or departure from the normal standard of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.” 

In Damulak v. Damulak the court held that while ‘cruelty is not one of the grounds set out under S.15(2) of the Matrimonial Causes Act for divorce; it remains however, one of the old grounds of divorce.’ And that ‘a Court can hold that a marriage has broken down irretrievably on the ground that one spouse has been proved to be guilty of cruelty to the other.’ 

Cruelty is the intentional and malicious infliction of physical and mental harm and suffering or a reasonable fear of further harm. It also includes the continuous infliction of minor acts of ill treatment that are likely to cause the victim to break down emotionally or mentally. However, temper, nagging and denial of sex are not enough to establish cruelty.

In Nubhan V Nubhan it was held ‘that during matrimonial proceedings, the word “Cruel” is not to be used in any esoteric or divorce-Court sense of the word. The conduct of the Respondent complained of by the Petitioner must be that which an ordinary man would describe as cruelty. It is only when evidence of cruelty in the ordinary, dictionary sense of the word is led and proved that the Court will find in favour of the Petitioner.’

Strong evidence of cruelty includes police reports, medical records and eye witness testimony are desirable but not indispensable. The court is required to consider the entire evidence and decide whether it gives rise to a finding of cruelty. Generally conduct that endangers life, limb or health will amount to cruelty.

In Siyanbola V Siyanbola the Court held:

“That to constitute cruelty, there must be evidence that the cruelty complained of is of such a character as to cause danger to life, limb or health (bodily or mental) or that it is such as to give rise to reasonable apprehension of such danger.”

Cruelty will include persistent, pervasive and excessive violence or threat of violence, deliberately infecting a spouse with a sexually transmitted disease, constant displays of rage, use and abuse of juju/voodoo or religious doctrine neglect of a spouses physical needs for food, shelter and clothing and verbal and emotional abuse.

In Amaizemen Vs Amaizemen the court held that the Petitioner demonstrated cruelty by abandoning his wife and children to travel to Dubai to have an affair with a strange woman and to go further to post some indiscreet photographs with his lover on his Face Book page on the internet to inform the world that his marriage with the Respondent was on the brink of collapse.

It should be noted that under the act the requirement is to prove that the petitioner/victim can no longer be reasonably expected to live with the respondent and the burden of proof is significantly lighter than it was to prove cruelty under common law.

The burden of proof in a matrimonial proceeding is on the petitioner. Section 82 of the Matrimonial Causes Act further provides that

“82 (1) for the purposes of this Act, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court.

(2) Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the Court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.”

To prove cruelty, the law put the burden on the petitioner to show: (a) the sickening and detestable behaviour of the respondent; and (b) that the petitioner finds it intolerable to live with the respondent. It has been held that he test for intolerability is an objective one, not a subjective one.

It should be noted that under the act the requirement is to prove that the petitioner/victim can no longer be reasonably expected to live with the respondent and the burden of proof is significantly lighter than it was to prove cruelty under common law.