Do away with long divorce process for it's a recipe for marital violence

Wednesday May 27 2020

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One of the outcomes of the lockdown has been the spike in gender-based violence (GBV), which is one of the grounds for divorce. PHOTO | FILE 

By Jean Nepomuscene Mugengangabo

One of the outcomes of the lockdown has been the spike in gender-based violence (GBV), which is one of the grounds for divorce.

But divorce is long and complex in that its formalities include at least five court-conducted sessions a compulsory conciliation phase comprising of two conciliation sessions, a pre-trial phase, a hearing phase and a ruling phase.

According to the law, the judge conducts a conciliation session with the couple, alerting them of effects of divorce and attempts to dissuade them from it all.

Three months after this session, the judge will again meet the couple to assess whether they have changed their mind. At the conclusion of the second session, and if the couple insists on divorce, the pre-trial conference follows.

In this stage, is designed for putting the case in a state of being substantially heard by a judge, by verifying whether parties to the case have well stated issues on which they need ruling and submitted supporting evidence and legal provisions relevant to their case.

At this stage, a court clerk ensures divorce candidates have clearly stated the cause of (contested) divorce, submitted all relevant information and positions relating to the custody of their children, if any, and sharing of properties if they have any in common.

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After concluding this stage, the case can be scheduled for a hearing by a judge who listens to the spouses in substance of their case before ruling on the divorce application and deciding about the effects of divorce such as the children’s custody and support, and sharing of properties.

According to the law, the ruling is pronounced and delivered within one month from the closing of hearings.

A divorce case takes an average of a year and a half to be concluded. If a divorce is granted, the applicant waits for the one-month appeal period before confirming they are divorced.

In case an appeal is made, then the three last phases of the process — pre-trial, hearing and ruling — will be repeated. In such a case, it can quite a long period to get a divorce.

From the above, it is clear the conciliation phase stretches the process. According to the law, this phase is applied not only to a contested divorce but also to an uncontested one even though in the latter spouses are required to submit a notarised agreement containing their resolutions on issues such as custody and support of children during and after the divorce, and the fate of their properties, if they have any in common.

One would consider it an undue process for spouses seeking an uncontested divorce to undergo a compulsory conciliation phase while they have already agreed to go their separate ways.

This long process does not only delay justice but can also lead to more marital violence, deepen the sorrow of the parties or lead to their depression.

To ease the divorce process, soften its side effects and eventually reduce the judicial workload, the divorce legal framework should be reviewed to allow the Conciliation Phase to be in one session, merged with the pre-trial conference and conducted by a court clerk, or the conciliation phase to be waived in case of uncontested divorce, or The divorce candidates to choose between an out-of-court conciliation/mediation conducted by private (certified) conciliators/mediators, and the one conducted by a judicial staff.

Jean Nepomuscene Mugengangabo is a corporate commercial lawyer, and a partner at Landmark Advocates, Kigali-Rwanda

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