Section 31 of the Act applies to the following orders;

1. Any order for maintenance pending suit and any interim order for maintenance,
2. Any periodical payment order,
3. Any secured periodical payment order,
4. Any order made by virtue of section 23 (3) (c) or 27 (7) (b) above (provision for payment of a lump sum by instalments),
5. Any order for a settlement of property under section 24 (1) (b) or for a variation of settlement under section 24 (1) (c) or (d) above, being an order made on or after the grant of a decree of judicial separation.

The powers exercisable by the court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order.

The court shall not exercise the powers conferred by section 31 of the MCA 1973 in relation to an order for a settlement under section 24(1) (b) or for a variation of settlement under section 24(1) (c) or (d) above except on an application made in proceedings;

1. For the rescission of the decree of judicial separation by reference to which the order was made, or
2. For the dissolution of the marriage in question.

No property adjustment order shall be made on an application for the variation of a periodical payment or secured periodical payment order made (whether in favour of a party to a marriage or in favour of a child of the family) under section 23 of the Matrimonial Causes Act 1973, and no order for the payment of a lump sum shall be made on an application for the variation of a periodical payment or secured periodical payment order in favour of a party to a marriage (whether made under section 23 or under section 27 above).

Where the person liable to make payments under a secured periodical payments order has died, an application under section 31 relating to that order may be made by the person entitled to payments under the order or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out.

In exercising the powers conferred to the court by section 31, the court shall have regard to all the circumstances of the case including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.

The personal representatives of a deceased person against whom a secured periodical payment order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months as mentioned in the above paragraph (subsection 6 of section 31 of the Matrimonial Causes Act 1973) on the grounds that they ought to have taken into account the possibility that the court might permit an application under section 31 to be made after that period by the person entitled to payments under the order, but this shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of section 31.

In considering for the purposes of subsection 6 of section 31, the question of when representation was first taken out, a grant limited to settled land or to trust property shall be left out of the account and a grant limited to real estate or to the personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

In any proceedings for nullity of marriage, evidence on the question of sexual capacity shall be heard in camera unless in any case, the judge is satisfied that in the interests of justice any such evidence ought to be heard in open court.

GROUNDS FOR A DIVORCE IN CAMEROON

The basis of courts in Cameroon to assume Jurisdiction for a divorce process is either the domicile which is determined by the matrimonial home of the spouse or residence of one of the spouses or the place of celebration of the marriage.

As earlier mentioned, the court may pronounce a decree of dissolution of marriage in accordance with Section 1 of the Matrimonial Causes Act of 1973 which stipulates that ‘the court may pronounce a decree of dissolution of marriage on the grounds that the marriage has broken down irretrievably. For the marriage to have broken down irretrievably, Section 1 (2) of the same law has obligated the petitioner to prove one or more of the following facts;

1. If one of the spouses has committed adultery in the marriage and the other spouse finds the act intolerable to continue in the marriage hence a divorce in Cameroon becomes the only option. The proof of adultery is usually based on circumstantial evidence as it is very remote for acts of adultery to be discovered by the other spouse.
2. Since the marriage, one of the spouses has behaved in such a way that the other spouse cannot reasonably be expected to continue in the marriage. Hence a divorce in Cameroon becomes the only recourse. The behavior must be serious enough to qualify under this ground.
3. Desertion of one of the spouses for a continuous period of two years immediately preceding the presentation of the petition.
4. That the spouses have lived apart for a continuous period of two years immediately before the petition and the other spouse consented to divorce in Cameroon.
5. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

ISSUES TO ASCERTAIN IN A DIVORCE PROCESS IN CAMEROON

Upon the satisfaction of Section 1(1) and (2) of the Matrimonial Cause Act of 1973 alongside the other supplementary laws, the following issues must be ascertained by the family solicitor;

1. Whether the marriage produced any children and the aspect of custody.
2. The property regime of the marriage. Whether it is a joined property regime or a separate property regime.
3. Whether the property of the spouses existed before the marriage or was acquired in the marriage.
4. Whether the divorce in Cameroon will be a consented divorce or a contentious divorce process.

PROCEDURE FOR A DIVORCE IN CAMEROON

• The family solicitor will engage in an interview with the intended petitioner,
• The family solicitor will engage in an attempt to reconcile the procedure after the client’s briefing,
• The family solicitor will ascertain whether there exist any children in the marriage and the ages of the children,
• The family solicitor will ascertain the property regime of the marriage and whether there exists any property in the marriage,
• The family solicitor should ascertain aspects of the jurisdiction of the court to hear the divorce matter.

Upon the successful appraisal of the above aspects, the family solicitor is to request the following documents;

1. The marriage certificate
2. The birth certificate of the children if any
3. Any document as proof of the existence of a property in the marriage
4. A certificate of residence

The family solicitor will produce the following documents to be filed before the competent High Court;

1. A divorce petition
2. A verifying affidavit on oath attesting to the facts contained in the petition.
3. A certificate of reconciliation attesting to the fact that the family solicitor has made an attempt to reconcile the parties which failed.

The documents will be served on the respondent within the prescribed timeframe established by law in order to ensure that the principle of fair hearing is respected.

Upon a successful plea before the court, the court will grant an ORDER NISI and an ORDER ABSOLUTE in the case of a contested divorce in Cameroon. After which a CERTIFICATE OF DIVORCE and a judgment will be issued to the parties in the matter.

In a case where the parties to the divorce in Cameroon agree to the divorce procedure and have already laid down the modalities of their separation as regards custody of the children and the distribution of the family property, then the court will grant a CONSENT JUDGMENT to the divorce in Cameroon.

Clients interested to engage in a divorce in Cameroon usually inquire about the following issues;

1. Can a spouse in a marriage deny the other spouse a divorce?

A spouse cannot deny the other spouse a divorce. If the spouse is served with the divorce documents and he or refuses to sign the papers, the matter will be treated as an undefended matrimonial cause.

• If a spouse makes his or herself impossible to find through an address in order to be served with the divorce papers, will it frustrate the divorce process?

Such a spouse cannot frustrate a divorce process based on availability because the documents will be served through substituted means.

• What will be the situation if the spouses of divorce in Cameroon do not agree on the custody of the children and the family property?

It will be left to the court to decide what it deems best and equitable with regard to the circumstances of the case.

• If a spouse sells the family property while the divorce matter is in court, will the sale be valid?

The sale will not be valid and the other spouse will still list that property sold in the divorce petition as well as apply to the court for an order restraining any sale from taking place pending the decision of the court. Such an order will be attached to the property as public notice.

• Can a criminal matter emanate from a divorce process?

Yes, if any of the spouses committed a crime towards the other in accordance with the Cameroon Penal Code, a criminal complaint can be lodged against the accused spouse.

N/B It is important to note that the welfare of the child in a marriage is paramount and must be determined before the court can pronounce divorce in Cameroon.

1. For the purposes of this section there are no children of the family to whom this section applies, or
2. That the only children who are or may be children of the family to whom this section applies are the children named in the order and that-
3. Arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances, or
4. It is impracticable for the party or parties appearing before the court to make any such arrangements, or
5. That there are circumstances making it desirable that the decree should be made absolute or should be granted, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b) above.

The court shall not make an order declaring that it is satisfied unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time.

If the court makes absolute a decree of divorce or of nullity of marriage, or grants a decree of judicial separation, without having made an order under section 41(1) above, the decree shall be void but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by subsections (1) and (2) were not fulfilled.

If the court refuses to make an order under subsection (1) in any proceedings for divorce, nullity of marriage, or judicial separation, it shall on application by either party to the proceedings, make an order declaring that it is not satisfied.

Section 41 of the Matrimonial Causes Act 1973 applies to the following children of the family;

1. Any minor child of the family who at the date of the order under subsection (1) is;
2. Under the age of sixteen, or
3. Receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment, and
4. Any other child of the family to whom the court by an order under the subsection directs that this section shall apply,

And the court may give such a direction if it is of opinion that there are special circumstances that make it desirable in the interest of the child that this section should apply to him.

In this section ‘welfare’ in relation to a child includes the custody and education of the child and financial provision for him.

Where the grant of a decree is opposed by virtue of this ground, then;

• If the court finds that the petitioner is entitled to rely in support of his petition on the fact of five years’ separation and makes no such findings as to any other fact as mentioned in section 1(2) of the Matrimonial Causes Act 1973 to wit;
• If one of the spouses has committed adultery in the marriage and the other spouse finds the act intolerable to continue in the marriage hence a divorce in Cameroon becomes the only option. The proof of adultery is usually based on circumstantial evidence as it is very remote for acts of adultery to be discovered by the other spouse.
• Since the marriage, one of the spouses has behaved in such a way that the other spouse cannot reasonably be expected to continue in the marriage. Hence a divorce in Cameroon becomes the only recourse. The behavior must be serious enough to qualify under this ground.
• Desertion of one of the spouses for a continuous period of two years immediately preceding the presentation of the petition.
• That the spouses have lived apart for a continuous period of two years immediately before the petition and the other spouse consented to divorce in Cameroon.
• That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition, and
• If apart from this section the court would grant a decree on the petition,

The court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage, it shall dismiss the petition.

A hardship shall entail for the purpose of this circumstance the loss of the chance of acquiring any benefit that the respondent might acquire if the marriage were not dissolved.

1. An order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion,
2. An order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them.
3. An order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage.
4. An order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement.

The subject however in the case of an order as per paragraph (a) above to the restrictions imposed by section 29(1) and (3) of the Matrimonial Causes Act on the making of orders for a transfer of property in favor of children who have attained the age of 18.

The court may make an order as per paragraph c above notwithstanding that there are no children of the family.

Without prejudice to the power of the court to give a direction under section 30 of the Matrimonial Causes Act 1973 as regards the settlement of an instrument by conveyancing counsel, where an order is made under this section on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.

General Powers of the Court in Cameroon

Where a decree of divorce has been granted but not made absolute, then without prejudice, any person may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court, and in such a case the court may;

• Make the decree absolute,
• Rescind the decree,
• Require further inquiry, or
• Otherwise deal with the case as it thinks fit.

Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned above in line with section 9 of the matrimonial cause act 1973.

Special Protection for Respondent in Separation Cases

Where in any case the court has granted a decree of divorce on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years separation coupled with the respondent’s consent to a decree being granted and has made no such finding as to any other fact mentioned in section 1(2) of the Matrimonial Cause Act 1973, the court may on an application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent. This shall apply in the following case;

• Where the respondent to a petition for divorce in which the petitioner alleged two years’ or five years’ separation coupled with the respondent’s consent to a decree being granted has applied to the court for consideration based on his financial position after the divorce, and
• The court has granted a decree on the petition on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years’ or five years’ separation as the case may be and has made no such finding as to any fact mentioned.

The court hearing an application by the respondent shall consider all the circumstances including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent as having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first. The court shall not make the decree absolute unless it is satisfied that;

• The petitioner should not be required to make any financial provision for the respondent, or
• That the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.

The court may if it thinks fit make the decree absolute notwithstanding the above requirements if;

• It appears that there are circumstances making it desirable that the decree should be made absolute without delay, and
• The court has obtained a satisfactory undertaking from the petitioner that he will make such financial provision for the respondent as the court may approve.

Any married person in line with section 19 of the Matrimonial Causes Act 1973 who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court may if satisfied that such reasonable grounds exist, grant a decree of presumption of death and dissolution of the marriage.

In any proceedings, the fact that for a period of seven years or more the other party to the marriage has been continually absent from the petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proven.

Under this circumstance, neither collusion nor any other conduct on the part of the petitioner which has any time being a bar to relief in matrimonial proceedings constitutes a bar to the grant of a decree under this circumstance.

Where the court makes an order under section 44 of the Act for supervision by a welfare officer, the officer responsible for carrying out the order shall be such probation officer as may be selected under arrangements made by the court in collaboration with the state or local authority.

The court shall not have the power to make an order as per section 44 if the child in pursuance of such an order under section 43 of the Act is in the care of a local authority.

Where a child is under the supervision of any person as per section 44 of the Act, the jurisdiction possessed by a court to vary any financial provision order in the child’s favor or any order made with respect to his custody or education shall, subject to any rules of court, be exercisable at the instance of that court itself.

The court shall have power from time to time by an order under section 44 of the Act to vary or discharge any provision made in pursuance of this section.

The authority specified in an order under section 43 of the Act shall be the local authority for the area in which the child was in the opinion of the court resident before the order was made to commit the child to the care of a local authority, and the court shall before making an order hear any representations from the local authority including any representation as to the making of a financial provision order in favour of the child.

While an order made by virtue of this section is in force with respect to a child, the child shall continue in the care of the local authority notwithstanding any claim by a parent or other person.

An order made under section 43 of the Act shall cease to have effect as respects any child when he becomes 18, and the court shall not make an order committing a child to the care of a local authority as per this section after he has become 17.

The court shall have power from time to time by an order under this section to vary or discharge any provision made in pursuance of section 43 of the Act.