This Act was repealed on 2015-07-03 by Marriage, Divorce and Family Relations Act.
- Commenced on 31 July 1905
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
- [Repealed by Marriage, Divorce and Family Relations Act (Act 4 of 2015) on 3 July 2015]
1. Short titleThis Act may be cited as the Divorce Act.
2. Limitations of this ActNothing hereinafter contained shall authorize—
3. InterpretationIn this Act—“minor children” means, in the case of Africans, boys who have not attained the age of 14 years and girls who have not attained the age of 12 years.
4. Jurisdiction of the High Court Principles of law to be appliedJurisdiction under this Act shall only be exercised by the High Court (hereinafter called the Court), and such jurisdiction shall, subject to this Act, be exercised in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England:Provided that the Minister may, by notice published in the Gazette, authorize such subordinate courts as he may specify to exercise jurisdiction under this Act in regard to marriages celebrated under the Christian Native Marriage Ordinance, 1912: *And provided further that the Minister shall appoint a person to exercise within the jurisdiction of the Court, subject to the directions of the Attorney General, the powers and duties assigned to the Queen's Proctor by any law for the time being in force in England relating to matrimonial causes and matters, and the person so appointed shall be notified in the Gazette by the designation of State Proctor for Malawi.[15 of 1912]* Repealed by Ordinance 4 of 1923.
Dissolution of marriage
5. Grounds for divorceA petition for divorce may be presented to the Court either by the husband or the wife on the ground that the respondent—
6. Co-respondentWhere the husband is the petitioner and the petition is presented on the ground that the respondent has since the celebration of the marriage committed adultery, he shall make the alleged adulterer a co-respondent to the petition unless he is excused by the Court from so doing on one of the following grounds—
7. Duty of Court on presentation of a petition for divorce
8. Restriction on petitions for divorce during first three years after marriage
9. Condonation of adulteryAdultery shall not be deemed to have been condoned unless conjugal cohabitation has been continued or subsequently resumed.
10. Grant of relief to the respondentIf the respondent opposes the relief sought on the ground of the petitioner’s adultery, cruelty or desertion without cause, the Court may give the respondent, on his application, the same relief to which he would have been entitled if a petition had been presented seeking such relief, and the respondent may give evidence of or relating to such adultery, cruelty or desertion without cause.
Nullity of marriage
11. Petitions for nullity of marriageA husband or a wife may present a petition to the Court praying that his or her marriage may be declared null and void.
12. Grounds for decree of nullity
13. Children of annulled marriageWhere a marriage is annulled on the ground that a former husband or wife was living, and it is found that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or where a marriage is annulled on the ground of insanity or that the respondent was at the time of the marriage suffering from venereal disease in a communicable form, children begotten before the decree nisi is made shall be specified in the decree, and shall be entitled to succeed in the same manner as legitimate children to the estate of the parent who at the time of the marriage was competent to contract.
14. Proceedings for decree of presumption of death and dissolution of marriage
Judicial separation and protection orders
15. Grounds for judicial separation
16. Property of wife after judicial, separationWhere judicial separation has been decreed under this Act, the wife shall, from the date of the decree, and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire or which may come to or devolve upon her, and such property may be disposed of by her in all respects as if she were an unmarried woman, and on her decease, if she die intestate, shall go as it would have gone if her husband had then been dead:Provided that if she again cohabit with her husband, all property to which she may be entitled when such cohabitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband while separate.
17. Contracts, etc., of wife after judicial separationWhere a judicial separation has been decreed under this Act, the wife shall, whilst the separation continues, be considered as an unmarried woman for the purposes of contracts, wrongs, and injuries, and of suing and being sued in any civil proceedings, and her husband shall not be liable in respect of any contract, act, or costs entered into, done, omitted, or incurred by her during the separation:Provided that—
18. Petition to reverse decree of judicial separationA husband or wife upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced may at any time thereafter present a petition praying for the reversal of such decree on the ground that it was obtained in his or her absence, and that where desertion was the ground of such decree there was reasonable excuse for the desertion alleged.The Court may, on being satisfied of the truth of the allegations of the petition, reverse the decree accordingly.
19. Protection orders
20. Reversal or discharge of judicial separation or protection order, effect of
21. Divorce proceedings after grant of judicial separation
Restitution of conjugal rights
22. Restitution of conjugal rights
23. Husband may claim damages for adultery
24. Costs against a co-respondentA co-respondent may be ordered to pay the whole or any part of the costs of the proceedings if adultery with the wife of the petitioner has been established against him:Provided that he shall not be ordered to pay the costs of the petitioner—
25. Alimony pendente liteIn any suit under this Act the wife, whether or not she has obtained a protection order, may apply to the Court for alimony pending the suit, and the Court may thereupon make such order as it may deem just, provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue in the case of a decree nisi of dissolution or nullity of marriage until the decree is made absolute.
26. Permanent alimony
27. Discharge or alteration of order for alimonyWhere an order has been made for the payment of alimony, and the husband from any cause subsequently becomes unable to make such payments, the Court may discharge or modify, or suspend the order in whole or in part, and may again revive the order in whole or in part.
28. Settlement of the wife’s propertyWhen a decree of dissolution of marriage or of judicial separation is pronounced on account of adultery by the wife, and the wife is entitled to any property the Court may, notwithstanding the existence of the disability of coverture, order the whole or any part of such property to be settled for the benefit of the husband, or of the children of the marriage, or of both.
29. Power to vary settlementsAfter a decree absolute of dissolution or of nullity of marriage, the Court may inquire into the existence of antenuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or part of the settled property, whether for the benefit of the husband or wife or of the children (if any) or of both children and parents, as seems fit:Provided that no order for the benefit of the parents, or either of them, shall be made at the expense of the children.
30. Powers of the Court as to settlementsWhere the Court has power to direct any property to be settled, or to vary the terms of an existing settlement, it may appoint trustees to whom such money shall be paid and may order the necessary instruments to be prepared containing such provisions as it may think fit, and may order all necessary parties to execute the same, and may from time to time appoint new trustees, and may do all such other acts as it may deem necessary for carrying such directions into effect.
31. Custody of childrenIn suits for dissolution of marriage, or for nullity of marriage, or for judicial separation, the Court may at any stage of the proceedings, or after a decree absolute has been pronounced, make such orders as it thinks fit, and may from time to time vary or discharge the said orders, with respect to the custody, maintenance, and education of the minor children of the marriage, or for placing them under the protection of the Court.
32. ProcedureSubject to the provisions herein contained, all proceedings under this Act shall be regulated by the procedure followed in matrimonial proceedings in the High Court of Justice in England.
34. Service of petitionEvery petition under this Act shall be served on the party to be affected thereby, either within or without Malawi, in such manner as the Court may, by general or special order, from time to time direct:Provided that the Court may dispense with such service in case it seems necessary or expedient so to do.
35. Examination of witnessesThe witnesses in all proceedings shall be examined orally:Provided that the parties may verify their respective cases by affidavit, but so that the deponent may be orally cross-examined and re-examined either on the application of the other party or by direction of the Court.
36. Husband and wife compellable witnessesOn any petition presented by a wife for the dissolution of her marriage on the ground of adultery coupled with cruelty or desertion without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence relating to such cruelty or desertion.
37. Sittings in cameraThe Court may hear the whole or any part of proceedings under this Act with closed doors.
38. AdjournmentThe Court may adjourn the hearing of any petition under this Act, and may require further evidence thereon.
39. Making decrees nisi decrees absolute
40. Enforcement of orders AppealsAll decrees and orders made by the Court in proceedings under this Act shall be enforced, and may be appealed from, as if they were decrees or orders made by the Court in the exercise of its original civil jurisdiction:Provided that—
41. Re-marriage of the partiesWhen the time limited for appealing against a decree of dissolution or nullity of marriage shall have expired and no appeal has been presented, or when in the result of any such appeal any marriage shall be declared to be dissolved or annulled, but not sooner, it shall be lawful for the parties thereto to marry again as if the prior marriage had been dissolved by death.
42. Clergyman not bound to marry a divorced guilty partyNo 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, such marriage.
43. But must permit another clergymanWhen a clergyman in holy orders or other minister of religion in charge of any church or chapel refuses to perform such marriage service between persons who would, but for such refusal, be entitled to be married in such church or chapel, he shall permit any other clergyman in holy orders of the said church to perform the service in such church or chapel.
44. Rules of CourtThe Court may make Rules with respect to all matters of procedure under this Act and may also prescribe the forms to be used and the fees to be paid in proceedings taken hereunder.
History of this document
03 July 2015
Repealed by Marriage, Divorce and Family Relations Act
31 December 2014 this version
31 July 1905