Three paragraphs of section 17 of the Matrimonial Causes Act (Chapter 282) deal with criminality, and they operate quite differently.
The three grounds compared
| s 17(g) | s 17(h) | s 17(i) | |
|---|---|---|---|
| Who may petition | The wife only — “the petitioner’s husband” | Either party | Either party |
| Trigger | Frequent convictions for crime, sentenced in the aggregate to 3 years | In prison 3 years after conviction for an offence punishable by death, life, or 5 years or more | Conviction on indictment for violence against the petitioner |
| Second requirement | Habitually left the petitioner without reasonable means of support | Still in prison at the date of the petition | — |
| Timing | Within a period not exceeding 5 years | 3 years served | Conviction within 1 year before the petition |
Section 17(h) — long imprisonment
That, since the marriage, the other party has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition.
The offence must be serious. Not the sentence imposed, but the penalty the offence carries — death, life, or five years or more.
Three years must have been served, since the marriage.
The spouse must still be in prison when the petition is filed. A petitioner who waits until release loses the ground entirely.
That last requirement is a trap. Where release is approaching, the petition should be filed before it. After release, the petitioner must look to desertion or separation instead.
Section 17(g) — frequent convictions and failure to support
That, since the marriage, the petitioner’s husband has, within a period not exceeding five years —
(i) suffered frequent convictions for crime, in respect of which he has been sentenced in the aggregate to imprisonment for not less than three years; and
(ii) habitually left the petitioner without reasonable means of support.
The two sub-paragraphs are joined by “and”. A husband with a long record who has nonetheless supported his family is not within the ground; nor is one who has failed to support without the convictions.
“Crime” is defined in section 1(1) as an offence punishable by death or imprisonment.
Note that this is the only gendered ground in section 17 — it speaks of the petitioner’s husband. Whether that is consistent with section 55 of the Constitution has not been decided. A husband in the equivalent position would rely on section 17(h) or on desertion.
Where a person has been sentenced for two or more crimes that arose substantially out of the same acts or omissions, and the sentences were ordered to be served wholly or partly concurrently, then in reckoning the aggregate for section 17(g) any period during which two or more sentences were to be served concurrently shall be taken into account once only.
So a person sentenced to three concurrent three-year terms arising from one incident has an aggregate of three years, not nine. The section prevents a single episode of offending being counted several times over.
Section 17(i) — violence against the petitioner
That, since the marriage and within a period of one year immediately preceding the date of the petition, the other party has been convicted, on indictment, of —
(i) having attempted to murder or unlawfully to kill the petitioner; or
(ii) having committed an offence involving the intentional infliction of grievous bodily harm on the petitioner, or the intent to inflict grievous bodily harm on the petitioner.
No period of habitual conduct is required — unlike cruelty, which needs a year. A single conviction suffices.
But three limits apply:
- There must be a conviction, not merely conduct;
- It must be on indictment — a summary conviction is not enough;
- It must have occurred within the year before the petition.
A spouse who was seriously assaulted but where no charge was laid, or where the matter went summarily, cannot use section 17(i). The alternatives are cruelty, constructive desertion, or separation.
Immediate safety is a separate matter — see the protection provisions noted under cruelty.
Bars and practicalities
- Sections 27 and 28 — condonation, connivance and collusion apply to all three grounds.
- Section 29(d) — conduct of the petitioner that conduced or contributed to the ground.
- Section 31 — none of paragraphs (g), (h) or (i) is among the grounds available without leave in the first three years.
- Service and appearance. A respondent in prison must still be served — section 94 deals with service of process.
- Children. Where there are children under 16, section 59 applies before the decree becomes absolute.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1, 17, 22, 27–29, 31, 59, 94
- Criminal Code Act (Chapter 262); Constitution — s 55
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.