4. Divorce of a Christian or civil marriage

The Matrimonial Causes Act, which came into force in 1950 and is Cap. 102, is in substance the English Act of 1950. Section 5 lets either spouse petition on the ground that the other has committed adultery, or has treated the petitioner with cruelty, or has deserted the petitioner for a continuous period of at least three years. Only the wife may petition on the ground that the husband has, since the marriage, been guilty of rape, sodomy or bestiality. The rape or the sodomy may be against her or against someone else. There is no ground of incurable unsoundness of mind. Judges have said so, and have refused to invent one.

Adultery is voluntary sexual intercourse with a person who is not the spouse. It is rarely proved by someone who saw the act. The court infers it from association, opportunity and familiarity. The inference must be a fair one, and the conclusion must be necessary on the facts. That is John v John. The standard is the criminal standard, not the balance of probabilities. The Sierra Leone decisions, including Shonubi v Shonubi, Wyse v Wyse, Williams v Williams and Pyne Bailey, and Wilson v Wilson and Cousins, follow Ginesi v Ginesi. The evidence of one spouse can be enough if it is believed, but the court is slow to act on it alone, and slower still if it is contradicted in that spouse's presence. A confession is evidence against the spouse who makes it. It is not evidence against the co-respondent unless the co-respondent has also confessed.

Cruelty is not a single blow in temper. Boston Ag PJ, in Cookson v Cookson, adopted the test in Russell v Russell and in Evans v Evans. The conduct must be such as to have caused danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of that danger. The word "treated" in section 5 is read as a course of conduct. The gravity is the effect on this petitioner, not the reaction of a hypothetical reasonable spouse. Ames P put it, in Davies v Davies, as "this conduct by this woman to this man". Intention to injure is not required. In Wright v Wright the respondent did not realise what he was doing. Insanity is not a ground of divorce, and the petition was decided as cruelty because the petitioner's life was in danger. Macaulay v Macaulay is the later statement of the same test. The standard of proof is not the ordinary civil standard. In Wellesley-Cole v Wellesley-Cole the Court of Appeal rejected the balance of probabilities. Sir Samuel Bankole Jones P held that the court must be satisfied to a standard higher than the civil standard, though not as high as the criminal standard, reading the word "satisfied" in the Act with Bater v Bater. The criticism to record is that Bucknill LJ in Bater accepted the criminal standard, and that a standard lying between the two will vary with the judge.

Desertion has four elements, and all four must be present for the three years immediately before the petition. There must be a separation in fact. There must be an intention to bring cohabitation permanently to an end. The separation must be without the other spouse's consent. And there must be no just cause. A consensual separation is not desertion. If consent is later withdrawn, and the other spouse has no just cause for refusing to resume, desertion can then begin. Constructive desertion is the case where one spouse's conduct expels the other. Boyle v Boyle states the local test. The conduct must be grave and weighty, and such as can properly be regarded as expulsion in fact. A beating that drives the wife out the same night and keeps her out has been treated as that expulsion. Imprisonment is not, by itself, desertion. The three years must be continuous. A return that is meant to resume the marriage breaks the period. A return that is a sham does not.

There are three kinds of bar.

The restrictive bar is time. A petition cannot ordinarily be presented before three years have passed since the marriage. The court may allow an earlier petition if the case is one of exceptional hardship to the petitioner or of exceptional depravity by the respondent.

The absolute bars are connivance, condonation and collusion. If one of them is proved, the court must dismiss the petition. Connivance is a willing consent to the adultery complained of. Churchman v Churchman is the attempt at a definition. Setting a trap, so that adultery happens which would not otherwise have happened, is the difficult case. Condonation is forgiveness with knowledge, followed by reinstatement as husband and wife. A later matrimonial offence revives what was condoned. Collusion is an agreement to invent a ground, or to suppress a defence, so as to obtain a divorce.

The discretionary bars do not compel a dismissal. The court may refuse a decree, or may grant one, where the petitioner has also committed adultery, or has unreasonably delayed, or has treated the respondent with cruelty, or has deserted the respondent, or has conducted himself or herself in a way that conduced to the offence. The discretion is a real one. It is not a punishment for its own sake.

Death ends the marriage without a decree. Section 29 also lets the court dissolve a marriage where there are reasonable grounds for believing the other spouse to be dead. Continual absence for seven years, with no reason to believe that the spouse has been living in that time, is the statutory foundation of that belief. A later marriage without the decree is bigamous if the spouse is in fact alive.

Jurisdiction is the domicile of the husband, which at common law is also the domicile of the wife for as long as the marriage lasts. She cannot acquire a separate domicile by separation, by his desertion, or by a judicial separation. The Matrimonial Causes (Amendment) Act 1961 does not give her an independent domicile. It gives the court jurisdiction on her petition if she is resident in Sierra Leone and has been ordinarily resident here for the three years immediately before the proceedings, even though he is not domiciled here. If he is in desertion and out of the country, or has been deported, she need not wait out that residential period. A foreign decree is recognised if it is the decree of the common domicile. Smart's view, which is the safe one to state, is that a decree founded on a basis of jurisdiction which Sierra Leone itself uses, such as the wife's three years' residence, should also be recognised. That is the reciprocity in Travers v Holley. The wider English notion of a "real and substantial connection" should not be assumed to be Sierra Leone law.

A Mohammedan marriage is not a "marriage" for the Matrimonial Causes Act. Neither spouse can petition under it.