ABSTRACT

Cameroon enacted the Matrimonial Causes Act in 1973 to regulate marital issues in Cameroon. But this limitation to statutory marriage only entails shortcomings in respect of the other marriage systems that are also found in Cameroon: customary and Islamic marriage. All three systems, based on very different traditions, are, in principle, largely incompatible. This becomes particularly apparent when a marriage between the same persons contracted both under customary and statutory law is to be divorced. The requirements for customary and statutory divorce are not congruous in the different concepts of the (potentially) polygamous, customary (and Islamic) marriage and of the monogamous, statutory marriage. There are no provisions in the Matrimonial Causes Act considering obvious conflict situations. Reform has been frequently suggested but has not been implemented yet. This work tries at first to analyse the main aspects of customary, and statutory marriage and, especially, divorce, for in the case of the dissolution of marriage the distinguishing elements become most apparent. Then a proposal of an integrating divorce law will be presented which takes account of central features of the present marriage systems. It will be shown that many essential elements of these systems can be retained and combined to some extent in a unifying law.

                                     CHAPTER ONE

                               GENERAL INTRODUCTION

• BACKGROUND TO THE STUDY

Divorce is the process of terminating a marriage or marital union.^[1] Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property,^[2] child custody, alimony (spousal support), child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.

Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash.

The only countries that do not allow divorce are the Philippines, the Vatican City and the British Crown Dependency of Sark.^[3] In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an alien and satisfies certain conditions.^[4] 

The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine whether the reasons given were sufficient.

Divorce was rare in early Roman culture but as their empire grew in power and authority Roman civil law embraced the maxim, “matrimonia debent esse libera” (“marriages ought to be free”), and either husband or wife could renounce the marriage at will. The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the 6th century.