Dear Probono Partner, My name is Susan peters. I am a mother of five children. I got married to my husband in 2008 and our marriage was celebrated both in the court and later at the Redeem Christian Church of God.

Dear Probono Partner,

My name is Susan peters. I am a mother of five children. I got married to my husband in 2008 and our marriage was celebrated both in the court and later at the Redeem Christian Church of God.

I have however had serious problems in my marriage and I really want a divorce so as to keep my sanity, my husband has really put me through a lot of difficulties in my life.

My husband stopped taking care of me and our children since 2010 shortly after I had my last child. He works with a government ministry as a Surveyor, however he expects me to use my little salary as a teacher for the upkeep of the family. He is a chronic womanizer, He goes around with different kind of ladies. He stopped coming home after our parents and pastor intervened and ordered him to stop maltreating my children and I, this was sometime in July, 2011. He moved in with another woman and lived with her and never for once came home to even check on his children. He later won a visa lottery and relocated with this same woman to the US and now resides there. I got his house address and phone number and I constantly wrote to him without response and he changed his phone line after I tried to reach him through the phone.

I have been taking care of my Children alone and even his family have stopped offering their support to us. I really want to move on with my life this year, so I want to end the marriage, a friend of mine told me to contact you on what to do and I am also concerned about the welfare of my children. Please what is your advice?

ANSWER:

Dear Susan Peter,

I read your letter with so much interest, and I am really touched by your current situation. I will like to inform you in view of your desire to end your marriage that, marriage though a lifelong commitment and a till-death-do us –part vow of togetherness, is still not a prison where you can rot against your will, the law often come in to salvage situation like yours.

Your letter to us summarily raised three issues as regards your decision to dissolve your marriage with the father of your children. One, the lack of maintenance, the issue of desertion, and lastly the issue as to the custody of your children.

As regards maintenance, even the courts have held that a man has a common law duty to maintain his wife and his children and such a wife and children have a right to be so maintained. The husband by law can be compelled to provide the necessaries such as meat, drink, clothes etc. suitable to the man’s degree, estate, or circumstance. In other words, the right of a wife and a child to maintenance is not contractual in nature. So, there is no question as to whether or not you deserve maintenance from your husband and father of your children. His neglect or refusal to provide basic amenities for you and his children is a ground upon which the court may be urged to invoke its powers under section 70 (1) of the Matrimonial Causes Act, by making an order for your children’s maintenance. The court in this situation will however consider the means, earning capacity and conduct of both of you and all other relevant circumstances of your marriage and proposed divorce.

On the issue of desertion for almost four years, it is the law and it has been decided in various cases that a marriage can only be said to have broken down irretrievably on grounds of desertion if there is evidence showing that any of the parties has abandoned and forsaken the other without any justification thus renouncing the other and evading his duties.

Based on the above, it can be rightly implied that your husband has deserted you in view of the fact that you have lived apart for more than two years without any justification.

As regards the custody of your children, it will depend on their ages which you however omitted to disclose to us in your letter. But note that the court in the award of custody, puts the welfare and interest of the children in a paramount position.
Section 71(1) Matrimonial Causes Act provides that a custody, guardianship, welfare, advancement or education of the children of a marriage is of paramount consideration.

On the whole, I am optimistic that the court is likely to make orders in your favour as to you and your children’s maintenance and also grant your prayer for a divorce. As regards the custody of your children, the court will consider the welfare of your children during the subsistence of the marriage, and grant you custody of them if in its opinion it is in their best interest.

Yours sincerely,

Molindo Nkoyo Mary (07039020801)
Pro-Bono Partner