Section 59 of the Matrimonial Causes Act (Chapter 282) is the Act’s principal protection for children of a marriage being dissolved.
Section 59(1) — which children
(a) the children of the marriage who are under the age of 16 years at the date of the decree nisi; and
(b) any children of the marriage in relation to whom the Court has, under subsection (3), ordered that this section applies.
If the Court is of opinion that there are special circumstances that justify it, it may order that this section applies in relation to a child of the marriage who has attained the age of 16 at the date of the decree nisi.
Section 2 deems the following to be children of the marriage: a child adopted since the marriage by the parties or by either with the other’s consent; a child of both born before the marriage, whether legitimated or not; and a child of either party — including an illegitimate child and one adopted by either — who was ordinarily a member of the household at the relevant time.
A child of the parties adopted by someone else is deemed not to be a child of the marriage.
So step-children living in the household are within section 59, and section 2(3) applies the definition to a void purported marriage as if it were a marriage.
The section 59(3) power matters for a child of 16 or 17 still at school, or a child with a disability who will need support beyond 16.
Section 59(2) — the decree is held up
Unless the Court declares that it is satisfied that there are no children of the marriage in relation to whom this section applies, a decree nisi does not become absolute unless the Court has, by order, declared that —
(a) it is satisfied that proper arrangements in all the circumstances have been made for the welfare and, where appropriate, advancement and education for those children; or
(b) there are such special circumstances that the decree nisi should become absolute notwithstanding that the Court is not satisfied that such arrangements have been made.
| Route | What the Court declares |
|---|---|
| No such children | That it is satisfied there are no children to whom the section applies |
| Paragraph (a) | That proper arrangements have been made for welfare and, where appropriate, advancement and education |
| Paragraph (b) | That there are special circumstances justifying the decree becoming absolute anyway |
This is not a discretion the Court may decline to exercise. Until a declaration is made, the decree nisi stays a decree nisi — and the parties stay married.
The timing provision reflects it: section 60(2) provides that where section 59 applies, the decree becomes absolute at the later of three months after the decree nisi or 28 days after the section 59(2) order.
So a party who wants the divorce completed must put proper arrangements before the court. There is no way around it short of paragraph (b).
What “proper arrangements” means
Welfare — where the children will live, who will care for them, contact with the other parent, health and safety.
Advancement — their material provision and prospects.
Education — schooling, and who will pay for it.
The standard is proper arrangements in all the circumstances — not ideal arrangements. The court assesses what is realistic for this family.
In practice the arrangements will be set out in orders made under the Part VII powers — custody under section 74, maintenance under section 73, and where necessary settlement of property under section 75 to secure a home.
Because section 56(3) requires ancillary claims to be brought in the same petition, and section 56(4) requires them to be heard together as far as practicable, the material for the section 59 declaration is normally before the court already.
Paragraph (b) — special circumstances
Paragraph (b) allows the decree to become absolute even where the Court is not satisfied about the arrangements.
It is necessary because otherwise a parent could hold up the divorce indefinitely by refusing to cooperate, or a decree could be blocked where a parent has disappeared, is in prison, or cannot be found.
Note the structure: the Court must positively declare that there are such special circumstances that the decree should become absolute notwithstanding. It is not enough that arrangements are imperfect.
Making the declaration under paragraph (b) does not remove the children’s protection — the Court retains its Part VII powers, and applications about the children may be made afterwards.
Children are protected elsewhere too
- Section 31(5) — on an application for leave to petition within three years, the Court shall have regard to the interests of any children of the marriage.
- Section 32(4) — damages awarded against an adulterer may be settled for the benefit of the children of the marriage.
- Section 74 — the powers of the Court in custody proceedings.
- The Lukautim Pikinini Act 2015 — the best interests of the child under section 103, parenting orders, and child maintenance in the Family Court — all of which operate independently of a divorce, and are the only route where the marriage was a customary one, since section 4 excludes those from this Act.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 4, 31, 32, 56, 58–60, 73–76
- Lukautim Pikinini Act 2015 — ss 101–110
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.