ABSTRACT

The household abandonment, legal separation and even divorce have been nowadays commonplace to the point that one wonders if it is not better to remain single rather than  to be among those entering in the mode which is divorce. Divorce has a big impact on the assets of the spouses; in its proceedings ,the management of the family property becomes problematic since most often the husband continues to reside and have possession of the matrimonial of the matrimonial home while the wife is in the cold.

This study had as main research question: do spouses jointly manage matrimonial property in the course of divorce proceedings? Other research questions were: do the spouses have equal rights of management? Does the management which are the properties in question? What are the modalities of the management?  Does the management need to be improved? What are the difficulties faced with the management? And how can these difficulties can be overcome?

The main objective of the study was to find out how spouses manage matrimonial properties during divorce proceedings. Specific objectives were to find out if the management is equal between the parties, to identify the kind and nature of properties to be managed, to examine the management modalities, to examine whether the management need to be improved, to examine the difficulties faced with the management and to make proposals for reforms.

To conduct this research, we used the black letter methodology ( we exploited pieces of legislation, textbooks, theses, dissertations and journals, internet was also exploited).

The study therefore reveals that, law is different depending on whether one is in the francophone region or in the Anglophone one. There is also an undeniable change in the status of women, especially married women.

Some recommendations have been made at the end of this study among them were the education of girls and the training of women, supervision of legal pluralism, the wide dissemination of the law and especially reforming the law of persons and the family adapted to the Cameroonian context.

BACKGROUND OF THE STUDY

“No man is an island”. This adage is justified by the fact that everyone is related to somebody be it by blood, marriage or by operation of the law. Consequently it is difficulty to fine someone living in isolation especially in Africa where the concept of family is given an extended definition. The family which is considered as the most important unit of the human society is defined as a group of persons connected by blood, by affinity or by law especially within two or three generations. A group of persons consisting of parents and their children. A group of persons who live together and have a shared commitment to a domestic relationship. A family is therefore an assembly of person united by blood, by links of affinity such as adoption or by marriage[1].

As the family constitute the cornerstone of the society, marriage or birth plays a key role in its formation since a single person cannot constitute a family as expressed in the Latinism “unus homo familia non est.”[2] Since the family begins either with marriage or birth, it implies that its composition needs at least two persons.

In the past, marriage was more or less an affair of interests than the expression of love between two individuals. The union was more for the interest of two families rather than of two persons. The union was decided by families which wanted to merge, to combine their interest in business or to have their heirs possessing a particular lineage. In Africa and even in Europe, kings and chiefs gave out their children in marriage to safeguard peace or some other interest notwithstanding the consent of the parties. That is why a child could even be betrothed “en vente sa mere”[3].

The marriage union was concretised by the payment of dowry which in some European counties like England is paid by the girls’ family to the family of the boy, while in Africa it is paid by the boy’s family to the family of his wife to be[4].

The institution of marriage is viewed at different by various communities. For instance the act of cohabiting is erroneously considered by some people as marriage. The strength of this conception is based on the fact that in some circumstances the mistress may engage her master’s credit[5] thus behaving like husband and wife despite the fact that they are not legally bound by marriage. Such an union no matter how long it persists cannot be considered as a marriage for it lacks the pre-requisite of a legal union. Consequently it cannot give rise to a divorce proceeding.

Customary law marriage, otherwise known as polygamous marriage or marriage according to the native laws and custom was the principal type of marriage that was practiced in Africa before the advent of colonisation. It is defined by Justice Nganjie in Motanga v. Motanga as “… a union between a man and one or more women to the exclusion of other men”[6].

Though divorce proceedings may be engaged in this type of marriages, the issue of property has little or no place given that under customary law a woman is considered as constituting part of her husband’s property and consequently cannot own property. A graphic illustration of this opinion can be found in a book of a Ghanain author, wherein he cites an example of a typical will written by an African which read: “If I die, my brother… will inherit all my possessions including my wife. In my absence, my family has the rights to guard her in the same way as they will guard my other possessions against trespassers”[7].

The above citation shows that women in the African society are considered as property and consequently the issue of property management during divorce proceeding under customary law hardly constitute a problem as is the case with statutory marriages. It should however be noted that such customary practices are contrary to equity, natural justice and good conscience and are incompatible with written law[8].

A statutory marriage or better still a marriage in Christendom as defined by lord Penzance in the case of Hyde v. Hyde is a union of one man and one woman for life to the exclusion of all others[9]. A critical examination of this definition gives the impression that the union has to last for life and gives no room for divorce. This is precisely the concept of marriage in Christendom for as the Holly Bible puts it, “what God has put together let no man put asunder”[10]. The respect of this biblical provision is re-enforced by the Canon Law and the Catechism of the Catholic Church. The Canon law clearly provides that people who divorced or lived in polygamy will be excommunicated while the catechism of the church stresses that the husband and the wife become only one flesh. If parties who contracted a Christian marriage decide to engage a divorce procedure, the Canon Law will not intervene on matters related to the management of their properties. Such parties will simply be deprived from receiving certain sacraments from the church. Thus there is room for divorce in Christian marriages as is the case with statutory marriages.

With regards to statutory marriages, the definition of Lord Penzance in the case of Hyde v. Hyde seems to be problematic. This opinion is based on the fact that the definition is very workable for Christian marriages where divorce is not acceptable. But for statutory marriages the definition gives the impression that the marriage has to subsist for life whereas the Matrimonial Causes Act 1973 makes provision for divorce.

With regard to the French Civil Code, a marriage is equally defined as a legal act received in solemn form by a civil registrar whereby two persons establish between them an union whose the law imperatively regulates conditions, effects and dissolution[11]. From the Matrimonial Causes Act and the Civil Code it is clear that when the marriage is no more a going concern, the parties are free to seek judicial redress from the competent court. If the parties went in for separate property there will be no problems as such since each party will manage the property belonging to him or her. But what will be the situation where the parties agreed on joint property?

Before parties contract a statutory marriage, they are always asked by the civil status registrar to declare the property regime they intend to go in for. Generally since the union is just beginning everything seems to be based on love and unity and the parties have the desire to be united in all aspects for as one artist put it the two have become one or better still “one plus one equal to one”[12] and the parties generally go in for joint property.

When the union becomes soar and the marriage breaks down irretrievably such that the parties find it intolerable to continue to live together they engage in divorce proceedings. Generally the wife either abandons or is pushed out of the matrimonial home and in most cases accompanied with children of the marriage without any means of subsistence.

STATEMENT OF THE PROBLEM

When the marriage is a going concern, spouses have confidence in each other. They manage their properties peacefully without any problems. When the marriage becomes soar, crises come in, confidence disappears and the probability of committing shameful act such as assault, battery, etc., increases making the parties to live apart and engage divorce proceedings. In the course of the divorce proceedings the management of the family property becomes problematic since most often the husband continues to reside and have possession of the matrimonial home while the wife is in the cold.

RESEARCH QUESTION

Main question

This research is based on the question how do spouses manage matrimonial property in the course of divorce proceedings?

For a better understanding of our main question, the research will also be guided by the following sub-questions:

– Do the spouses have equal rights of management?

– Which are the properties in question?

– What are the modalities of the management?

– Does the management need to be improved?

– What are the difficulties faced with the management?

– How can these difficulties be overcome

RESEARCH OBJECTIVES

Main objective

The main objective of this work is to find out whether spouses jointly manage matrimonial properties during divorce proceeding.

Specific objective

– To find out if the management is equal between the parties.

– To identify the kind and nature of properties to be managed.

– To examine the management modalities.

– To examine whether the management need to be improved.

– To examine the difficulties faced with the management.

– To make proposal for reforms.

[1] GARNER (B.) (ed.), Black Law Dictionary, ninth edition, 2009.

[2] Cf. LEMOULAND (J. J.), in “Famille”, Répertoire civil Dalloz, 2005, p. 6. It signifies that one man can not constitute alone a family.

[3] NGWAFOR (E. N.), Family Law in Anglophone Cameroon, University of Regina, Saskatchewan, Canada, 1993, 380p, p. 46.

[4] African culture especially in Cameroonian puts the burden of dowry on the husband’s family.

[5] The law by wanting protection of children in this kind of union is obliged to recognise some rights to them as de facto society

[6] Cf. NGWAFOR (E. N.), Family Law in Anglophone Cameroon, op. cit., p. 34.

[7] Cf. MBETIJI MBETIJI (M.), Female Succession Rights in the Patrilineal and Matrilineal Societies of the North-West Province : The case of Nso and Kom Fondoms. A Maitrise Dissertation, University of Dschang, 1999, p. 24.

[8] See Preamble of the Cameroon Constitution as well as section 27 of the SCHCL 1955.

[9] Cf. NGWAFOR (E. N.), Family Law in Anglophone Cameroon, op. cit., note 6.

[10] St Mathieu, Chap 19, V. 6 ; St Marc, Chap 10, V. 9, in The Jerusalem Bible.

[11] GUINCHARD (S.) et DEBARD (Th.) (dir.), Lexique des termes juridiques, Paris, Dalloz, 22^e édition, 2014-2015, 1057p, spéc. p. 631.

[12] This is a Christian dogma.