There are some basic guidelines for the courts to follow, and they are contained in Section 71 of the Matrimonial Causes Act 1970.
The section states:
“(1) In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper.
(2) The court may adjourn any proceedings within sub-section (i) above until a report has been obtained from a welfare officer or such matters relevant to the proceedings as the court considers desirable and any such report may thereafter be received in evidences;
(3) In proceedings with respect to the
custody of children of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.
(4) Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage or by the parties or a party to the marriage as the case may be.”
The fact is that when it comes to the custody of the children of a marriage, the courts will consider the best interest of the child in making their decision. If either party can show why the other party should not be granted custody, the courts will take this into consideration in arriving at their decision. They can also find that neither parent is fit to retain custody of the child(ren). Basically, the facts of each case, determined by evidence provided by both parties, will determine the outcome. For instance, adultery will not automatically deprive one party of custody; the courts will consider the case and the circumstances of the said adultery.
Judges have tried to give more meat to the provisions of Section 71 of the Matrimonial Causes Act 1970 and certain principles are now generally accepted.
Here are some from the case of Tabansi v Tabansi (2009):
The interest of the child is paramount – “In considering maintenance in matrimonial proceedings, the education, maintenance and upkeep of a child are serious and sensitive matters which should not be hamstrung by technicalities. Therefore, what is best for the child should be the paramount consideration of the court.” Basically, the common attitude of the courts these days is that technicalities will not be allowed to stand in the way of justice.
In further considering the interest of the child, when awarding custody, “Except the conduct of the wife is morally reprehensible, it is better in an estranged marriage for the child of the marriage, more so if that child is a girl and of a tender age, to be left in the care and custody of the wife… the only child of the marriage being female is better kept in the custody of the mother, allowing for adequate right of visitation for the father.”
The period of child custody – Child custody will only come up if the child(ren) in question are below the age of 18 years (or 21 years if the courts find that there are special circumstances that justify making an order of maintenance for that child, such as ill-health, physical and/or mental disability, etc.)
Desertion – Although in this case it was the woman who packed her things out of the matrimonial home, the courts did not see this as effecting the desertion.
According to them, “there may have been some other preamble to compel the reaction.” In this case the preamble was the husband’s refusal to consider a reconciliation, which fact came out under cross-examination in court.
Duty of the husband to maintain his wife and children – Forget women’s liberation… the courts say, “At common law, it is the responsibility of the man to take care of his family.” Whether he has custody of the children or not the man is expected to contribute to their upkeep.
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