Women and Justice: Keywords

Legislation

Married Persons (Protection) Act (2000)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

Under the Married Person (Protection) Act, a married woman can apply for an order that she is not “bound to cohabit with her husband,” for legal custody of children under the age 16, and for maintenance.  A married woman’s application for one of these orders must include either a husband’s assault on her of requisite seriousness, desertion, cruelty, willful neglect to provide maintenance, the husband is a “habitual drunkard,” the husband had a venereal disease and insisted on sex, the husband compelled her to prostitution, or adultery.  The same orders are available to a husband, but on more limited grounds: the wife is a “habitual drunkard,” cruelty, adultery, or desertion.  The Supreme Court may still make an order for the judicial separation of a husband and wife and for the payment of alimony, which is separate from the legal options available under this Act.



Domestic Case Law

In the Marriage of Todd (No. 2) Family Court of Australia (1976)

Divorce and dissolution of marriage

Mr. Todd and Mrs. Todd were married in 1960 and had two children. On 23 November 1974, Mrs. Todd left the matrimonial home with the two children, but all three moved back in on 21 April 1975, where they continued to reside until the parents decided to divorce in 1976. The application for divorce under the Family Law Act 1975 (Cth) (the “Act”) initiated in the Family Law Division of the Supreme Court of New South Wales was transferred to the Family Court of Australia. On the question of divorce, one key issue was what constituted “separation” and “separated and apart” for a continuous period of not less than 12 months. The court held that this marriage had irretrievably broken down since 23 November 1974, and a continuous separation for 12 months the application for divorce had been satisfied. The Court held that “separation” was broader than mere physical separation and concerned the martial relationship itself. According to the Court, “Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.” In this case, the Court held although the spouses moved back in together in April 1975, they never restored the marital relationship.



Petlane v. Petlane High Court of Lesotho (1999)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support.  First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.



S.Y. contre T.M. Tribunal de grande instance Ouagadougou (1999)

Divorce and dissolution of marriage

A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).



T.T. M. contre T.M. Tribunal de grande instance Ouagadougou (1999)

Divorce and dissolution of marriage

A Burkinabe woman (T.M.) sought divorce from her Chadian husband (T.T.) on the grounds of adultery, abuse and abandonment, she also sought custody of their child. The divorce was granted in favour of T.M. in the court of Ouagadougou. The judge stated that in a divorce case involving spouses of different nationalities the governing law should be that of the common domicile of the spouses. In this case, the last common residence of the spouses was Chad. The Burkinabe judge applied the basic principle of Chadian divorce law that permits divorce for fault attributable to either spouse. The judge stated that the sole responsibility for the divorce lay with T.T. The judge went on to impose Burkinabe law as to custody granting custody of their child to T.M. T.T. was given visitation rights and was required to contribute child support towards the maintenance and education of the children