Last Change:

12/29/2024

The Divorce Act

Year: 1869

Type: Domestic law

Rights Category: Social protection, Family life, Documentation

Description

The Divorce Act of 1869 governs the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matrimonial matters.

Selected provisions
Section 42: Power to make such orders after decree

The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43: Power to make orders as to custody of children in suits for dissolution or nullity

In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or removed to, High Court Division, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders and may make such provision in the decree absolute or decree,
and in any such suit instituted in a District Court, the Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation,
as the High Court Division or District Court (as the case may be) deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit;
and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.

Section 44: Power to make such orders after decree or confirmation

The High Court Division, after a decree absolute for dissolution of marriage or a decree of nullity
and the District Court, after a decree for dissolution of marriage or of nullity of marriage has been confirmed,
may, upon application by petition for the purpose, make from time to time all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents was the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree absolute or decree (as the case may be), or by such interim orders as aforesaid.

Section 48: Suits on behalf of lunatics

When the husband or wife is a lunatic or idiot, any suit under this Act (other than a suit for restitution of conjugal rights) may be brought on his or her behalf by the committee or other person entitled to his or her custody.

Section 49: Suits by minors

Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court; and no petition presented by a minor under this Act shall be filed until the next friend has undertaken in writing to be answerable for costs.
Such undertaking shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.

Section 52: Competence of husband and wife to give evidence as to cruelty or desertion

On any petition presented by a wife, praying that her marriage may be dissolved by reason of her husband having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.

Section 57: Liberty to parties to marry again

When six months after the date of an order of High Court Division confirming the decree for a dissolution of marriage made by a District Judge have expired,
or when six months after the date of any decree of High Court Division dissolving a marriage have expired, and no appeal has been presented against such decree to the High Court Division in its appellate jurisdiction,
or when any such appeal has been dismissed,
or when in the result of any such appeal any marriage is declared to be dissolved,
but not sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death:
Provided that no appeal to the Appellate Division of the Supreme Court has been presented against any such order or decree.
When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death.

Section 58: English clergyman not compelled to solemnize marriages of persons divorced for adultery

No clergyman in Holy Orders of the Church of England shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty or censure for solemnizing or refusing to solemnize the marriage of any such person.

Section 59: English minister refusing to perform ceremony to permit use of his church

When any minister of any church or chapel of the said Church refuses to perform such marriage service between any persons who, but for such refusal would be entitled to have the same service performed in such church or chapel, such minister shall permit any other minister in Holy Orders of the said Church entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel.