FAMILY LAW CASES/JUDGMENTS

FAMILY LAW – LEGITIMACY: – Legitimacy of children born of out wedlock – Legitimacy and legitimation – Effect of subsistence of a valid marriage under the Marriage Ordinance on legitimacy of children – Acts considered as legitimation – Relevant considerations

FAMILY LAW –MATRIMONIAL CAUSES:- Custody of infant child – Application by wife who deserted matrimonial home and moved in with a lover with whom she carried on adulterous affair – How treated

FAMILY LAW –MATRIMONIAL CAUSES:- Custody proceedings – What applicant must prove to succeed – Good mother – Meaning and implications – Employment, visible source of income, suitable accommodation, immigration status, health and other relevant considerations on which court decides – When court may award custody to husband – How treated

FAMILY LAW – MATRIMONIAL PROCEEDINGS: – Parties to a Petition for divorce on ground of adultery – Cross-respondents accused of adultery with one of the parties to the marriage – Designations: “Persons Cited” and “Person Named” – Rules for naming, joining or claiming cost or damages against cross-respondents on ground of adultery – Relevant considerations

FAMILY LAW – MATRIMONIAL PROCEEDINGS: Divorce proceedings – Requirement to state the status of Wife before marriage – Rule 4(1) (a) of the Matrimonial Causes Rules, 1957 – Whether mandatory – Whether failure to do so is cured by the insertion of “nee (Wife’s pre-marriage surname)

 FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:- Petition for divorce on ground marriage had broken down irretrievably section 15(e) (f) of the Matrimonial Causes Act – Requirement for at least 3 years separation – What petitioner needs to prove

FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:- Proceedings under Matrimonial Causes Rules, Order VII Rule 1 (i) (a) – (d) – Requirement that Respondent file an answer to the petition if he so wanted to, after due Service – Effect of failure thereto – Power of Court under provisions of Order XI Rule 39(1), (2) and (3) of the Matrimonial Causes Act to issue a Certificate that suit was ready for trial in the absence of an appearance and/ or an Answer by the Respondent – Whether breach of constitutional right to fair hearing

FAMILY LAW – MATRIMONIAL CAUSES:- Divorce and ancillary claims – Whether Court can grant arrears of maintenance prior to the date of the petition – Appeal against custody and maintenance decision

FAMILY LAW – MATRIMONIAL CAUSES:- Ancillary claims – Order for maintenance and custody – Treatment as interlocutory orders – Justification – Whether such orders, though on the face they appear final, are subject to subsequent revision, suspension or modification by the court which pronounces them

FAMILY LAW – MATRIMONIAL PROCEEDINGS: – Divorce on ground of adultery – How proved – Burden of proof – Whether lies on the person who alleges adultery and that the same strict rule, as in criminal cases, applies, that is proof beyond reasonable doubt is required to establish adultery – Whether in order to succeed, it is not necessary to prove the direct fact and act of adultery in time and place – Whether the fact is inferred from circumstances which lead to it in most cases

FAMILY LAW – MATRIMONIAL PROCEEDINGS:- Divorce on ground of adultery – Damages against Co-respondent/third party adulterer – Whether damages in Divorce are compensatory only and are not exemplary or punitive and the attitude of the court is not to punish the adulterer but to compensate the husband – Whether evidence that the co-respondent had employed treachery or deliberation or wanton attack on family honour to seduce party to the marriage is relevant – Where marriage is found to have already broken down and there is little to compensate for – Effect on quantum – Whether court is not concerned with the means of the co-respondent in the assessment of damages

FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:- Proceedings under Matrimonial Causes Rules, Order VII Rule 1 (i) (a) – (d) – Requirement that Respondent file an answer to the petition if he so wanted to, after due Service – Effect of failure thereto – Power of Court under provisions of Order XI Rule 39(1), (2) and (3) of the Matrimonial Causes Act to issue a Certificate that suit was ready for trial in the absence of an appearance and/ or an Answer by the Respondent – Whether breach of constitutional right to fair hearing

FAMILY LAW – MATRIMONIAL CAUSES: – Adultery – Proof of – Standard of proof required – Confession of adultery – How regarded – Evidence of adultery – How inferred

FAMILY LAW – MATRIMONIAL CAUSES:- Confessional statement of respondent – Whether it need be direct – When made while drunk – Weight to be attached to same as admission – Circumstances when admission of adultery by respondent will amount to admission also by co-respondent – Relevant considerations

FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:‑ Ground for dissolution of marriage ‑ Adultery, Cruelty as grounds ‑ Whether permissible or valid under section 15(1) of the Matrimonial Causes Act, 1970

FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:‑ Ground for dissolution of marriage ‑ Ground cognisable under the Matrimonial Causes Act, 1970.

FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:‑ Condonation ‑ What amounts to ‑ Section 26 Matrimonial Causes Act ‑ Effect.

FAMILY LAW – MATRIMONIAL CAUSES – DIVORCE:- Divorce ‑ Cruelty ‑ Sexual intercourse after alleged cruelty ‑ Effect on proof of cruelty.

FAMILY LAW – MARRIAGE:- Proof of marriage – Customary law – Whether proof of acknowledgement enough – Marriage under the Act – What the Court would consider sufficient proof – Implication for administration of estate of deceased husband

FAMILY LAW – MARRIAGE:- Proof of existence of a valid existing marriage constituted under the Marriage Act – Whether nullifies the existence of a subsequent marriage between a party thereto with a third party

FAMILY LAW:- Validity of marriage and Paternity of Child – Two rivals who disparately cannot prove validity of marriage to a woman lay claim to paternity of her child – Paramount of interest – Whether it is in the best interest of the child to merely grant custody to mother without determining who the father is

FAMILY LAW:- Dispute over paternity of Child and equitable principles – Where there are equal equities the first in time prevails,” – Effect where two rivals lays claim to child of woman they had lived with as ‘wife’ under invalid customary law marriages

FAMILY LAW – MATRIMONIAL PROCEEDINGS:- Filing of caveat against notice of marriage on the ground that a party to proposed marriage was married in accordance with the Customary Law and the caveatrix was expecting a baby by him and under section 47 of the Marriage Act it would be illegal for him to get married to another party under the Marriage Act – How withdrawn – Whether withdrawal renders caveatrix liable to costs

FAMILY LAW – MATRIMONIAL PROCEEDINGS:- Caveatrix proceedings – Hearing and determination as envisaged by section 15 of the Marriage Act – Whether Act made no provisions as to how a caveat can be abandoned once it has been entered – Justification – Whether once a caveat is entered the purpose is that it must be pursued so as to ensure that the parties to the proposed marriage may be free once and for all to celebrate the marriage or be forbidden to marry – Whether Order 28 of the Rules of the High Court has any application – When cost would not be awarded against a caveatrix for entering caveat and withdrawing

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