Divorce rate on the rise

With just K500 court fees for a divorce petition, a couple’s promise of a lifetime together can evaporate into thin air.

With that amount, a man or woman is able to petition the court to dissolve a union, sometimes within a day.

The Nation has found that between January and October this year, about 722 divorce petitions were registered at two Lilongwe courts alone—senior resident magistrate and chief resident magistrate (CRM).

Fresh from the festive season, the lower court registered 23 divorce petitions in January this year, nearly doubling to 40 in February then down to 34 in March.

Between April and July, the court received 181 petitions for divorce, 28 of which were by women seeking divorce from their husbands on grounds of adultery, cruelty and desertion, among others.

“The defendant does not want the complainant, does not assist the child and has married another woman,” reads one petition from a wife seeking divorce.

August alone registered 44 divorce petitions at the senior resident magistrate’s court, among them civil cause number 462 of 2014 in which one Patrick Lifa sought divorce from his wife Joyce. The divorce was granted within 10 days of the petition.

The defendant, Joyce, was given K20 000 (US$40) compensation.

On September 1, the court received seven divorce petitions and 60 more as the month came to an end.

For reasons which the court could not explain, the number of divorce petitions tapered off in October up to November 7 when the number reached 52.

A similar trend was noted in the CRM court when January recorded a low number of petitions at 31, but February and March combined registered 55.

In April, 25 people sought divorces through the CRM and only 12 in May then 34 in June.

Between July and November 7, the number of petitions reached 124.

The petitioners came from the townships of Kawale, Area 25, Likuni, Chinsapo and Kaliyeka, which are urban areas in Lilongwe City.

The most common type of marriage, which the registrar of marriages in Lilongwe handles, is customary in which a couple wanting to tie the knot just walks into the district council offices with their witnesses and they become husband and wife.

According to Lilongwe district commissioner (DC) Charles Kalemba, civil marriages, which are popular with foreigners marrying Malawians, require 21 days notice.

Marriage certificates obtained through the church are not registered with the Registrar of Marriages immediately, but the churches are required to do so after a year, Kalemba said.

Our investigations revealed that it is the marriages blessed in church and customary ones that are easier to dissolve in court.

Records at the district council indicate that between March and May, the registrar of marriages gave out on average 35 marriage certificates, but the figure went up in June (70), July (44), August (71) and in September about 85 certificates were given out.

From October to date, about 70 couples registered marriages through the DC.

But to end the marriage, Section 5 of the Divorce Act of 1905 states that a man or woman can present a petition to the court on the specific grounds of adultery, desertion, cruelty, unsound mind or if a man was found guilty of rape, sodomy or bestiality.

It is only when the court is satisfied with the facts of the petition and subsequent hearing that a divorce is granted.

However, the law does not allow divorce within the first three years of marriage unless there are proven exceptional hardships a petitioner has suffered.

Lilongwe senior resident magistrate Paul Chiotcha says the most common reasons for divorces that go through his court are adultery, domestic violence or cruelty and desertion, where the man leaves the wife for another woman.

But he agrees with Kalemba that Malawians opt for customary marriages, also celebrated at church, and not civil marriages which are not so easy to dissolve.

“These marriages [celebrated at the DCs] are very few as most Malawians contract customary marriages or they just start living together without any formalities. As such, these two are very common in our courts,” Chiotcha said.

Currently, the law recognises statutory marriages, customary marriages and marriage by repute or permanent cohabitation, but a proposed new law—the Marriage, Divorce and Family Relations Bill—seeks to harmonise all the related laws.

It is the new bill, which is still undergoing review, that states that the court can only grant divorce or judicial separation if it is satisfied that the marriage has irretrievably broken down (through adultery, desertion or cruelty); the parties have undergone counselling and financial arrangements for the future have been made.

Although this gives a small picture of how Malawians no longer value marriage, professional marriage counsellors testify the institution of marriage is under threat.

Reasons for divorce

Renowned family and marriage counsellor Patrick Semphere can testify that traditional values, which were pillars for strong marriages, have been eroded.

He believes culture anticipates a failed marriage with such sayings as “banja ndi mumtengo, ukakwera umadzatsika” and young people getting married without being adequately prepared due to growing up without proper parental mentoring.

Said Semphere in an interview last week: “A story is told of a marriage that ended because the man discovered that his wife did not know how to prepare nsima. Silly, though the reason may sound, but it cost one young couple their marriage.”

In his work as a marriage counsellor, Semphere said he has identified some of the reasons for break-up of marriages nowadays and they range from financial management, relatives, and conflicting standards in child upbringing, sexual mismatch, infidelity and even choice of religion.

The divorce petitions to court showed that the common grounds for divorce included desertion, loss of interest, cruelty or simply one partner not wanting the other.

As simplistic as it sounds, the courts have presided over such cases and dissolved them unequivocally.

In the rare cases that a woman petitioned for a divorce, as observed in civil cause number 97 of 2014, a husband chased his wife from their matrimonial home because he wanted to marry another woman.

But what has happened to the role of counsellors who would mediate over marriage conflicts before a couple decided to terminate their relationship?

Semphere is sure that no mediation can resolve any issues when a couple is not keen to work things out.

To resolve differences before the option of divorce, counsellors such as Semphere first establish if the couple is willing to resolve matters.

“You do not want to bring a fire extinguisher when the house is already in ashes. Once willingness is established, then one goes into digging history, to determine the root cause of the problems. A good counsellor listens a lot; pays attention to body language and ensures that you are asking and answering the right questions,” Semphere said.

But when all else fails and there are irreconcilable differences, divorce is an option.

“Marriage is about two people and, therefore, if any of them thinks they can no longer stay in there, irrespective of all the counsel and mentoring they have received, then nothing can bring them back together,” Semphere said.

Unfair practices

The successful divorce petitions show that compensation for person being divorced, who is mostly the woman, ranged from K300 000 (US$600) to K20 000(US$40) paid in instalments, as the court sees fit.

Children, who are fruits of such marriages, are awarded with a monthly support of K10 000 (US$20) until the children reach the age of 18 or finish school.

In very rare circumstances, the court ordered that the man build a house for the woman and children worth a certain amount, ranging from K150 000 (US$300) to K500 000 (US$1000).

The Malawi Divorce Act has come under fire for its discrimination of women during divorce proceedings and Women and Law in Southern Africa-Malawi (WLSA-Malawi) has asked the Constitutional Court to review the Married Women Property Act of 1882, which states that property can only be jointly held if the woman made a monetary contribution to its purchase.

WLSA wants “jointly held” property to be interpreted that all property acquired by either spouse during marriage, regardless of whether the couple intended to own it, be seen as joint property.

WLSA Malawi coordinator Mzati Mbeko said Supreme Court of Appeal Judge Dunstain Mwaungulu, in Kamphoni v Kamphoni Matrimonial Cause No 7 of 2012, argued that fairness and not contribution determines disposal of matrimonial property on dissolution of customary law marriage.

Last week, WLSA-Malawi successfully argued a case in which the lower court awarded the woman kitchen utensils upon dissolution of the marriage.

“The lower court’s reasoning was that because the man paid lobola then what she was given was enough. However, we have managed successfully to argue her case and she has now been given a house and other items,” Mbeko said.