In many countries of the world, the family is perceived as the pillar upon which society is anchored, which is why marriage, especially between a man and a woman is sanctified.
In this instance, most African countries have adopted laws that sought to protect and support the family. In Botswana like in most parts of the world, it is much easier and simpler for people to marry but quite demanding, exhausting and in some cases humiliating to walk away from the matrimonial family.
Basically couples could simply appoint with a marriage officer to solemnize their marriage but when one spouse wishes to walk away from the marriage, they have to lodge their intention with the High Courts.
Certain conditions ought to be satisfied for a divorce to be granted. In other words, marriages completed under the Botswana laws cannot be dissolved unless the High Court or Court of Appeal so order.
The applicant would have to prove that the other spouse has or had an adulterous relationship which has turned the marriage into an unworkable scheme or that the unwanted spouse has behaved in a way that the applicant cannot be expected to tolerate or that the wrongdoer has abandoned the matrimonial home.
To make it even more harder for a divorce to be granted, even after proving one or more of the marriage crimes specified above, the courts must be satisfied that the marriage cannot be saved before granting a decree of divorce.
If the court is not satisfied, it may refuse to grant a divorce meaning that the bickering between the former darlings have somewhat been legitimized and being consciously powered by the state.
This essay discusses the need to revisit and reform our divorce law. The discussion has been prompted by newspaper stories about married couples who for one or more reasons have evoked the provisions of the relevant Act seeking to part ways only to turn into primitive savages.
One such story titled ‘toxic couple washes dirty linen in public’ carried by The Voice newspaper sometimes in August 2020 details disgusting accusations that literally fit the description of fecal affair between people who once vowed to be separated only by death.
Since those seeking a divorce have to convince the courts that indeed the other spouse is guilty, applicants have normally had to go for broke revealing X-rated snippets of the infidelity of their spouses often using imagery to manipulate emotions of the audience.
The applicants for a divorce cannot be faulted for risking everything in their bid to convince the courts. The law actually requires spouses seeking a divorce to do so if they want their application to be successful.
This requirement has tended to make divorce proceedings violent and injurious than need be, forcing applicants to concoct lies and place their spouses under complex surveillance operations, using video cameras and other electronic devices to piece together incriminating evidence.
Essentially, through this law, the Government of Botswana can be said to be conspiring to destroy families if it can indeed demand that applicants for divorce dig deeper for hard evidence incriminating the guilty spouse and then publicly broadcast such dirt in open courts to the amusement of the audience and readers.
The law seems to induce applicants for divorce to travel backward and dig as much dirt in the form of past indiscretions in order to scandalize, paralyze and ultimately destroy the guilty spouse and extinguish any prospects for reconciliation or co-parenting in the future.
As is often the case, the guilty spouse would plead a variety of defenses most likely trying to explain or justify their waywardness by claiming that they committed adultery because the other spouse is as cold as a forgotten corpse or that the other spouse has expired beyond mutual tolerance.
As a result, applicants for divorce have gone further to manufacture misconducts that really never were such as blaming the other spouse for cheating with family members, relatives and their pets.
This means that at the end, whether the courts grant a divorce or refuses to do so, the emotional well-being of the spouses, the children, extended family and the community at large would have been ruined resulting in hostilities, enmity and ultimately an angry and dysfunctional society.
Records from the High Courts of Botswana offer a grim picture, showing that as more people get into marriage, the rates of divorce also shoots up as married couples opt out of the matrimonial homes for various reasons.
Actually, former Chief Justice Maruping Dibotelo and expressed serious concerns about the high rates of divorce while officiating at opening of the 2017 legal year, alleging that people no longer respect marriage. One also expected the former Chief Justice to also express reservations about our divorce law unless he and his colleagues are big fans of the courtroom drama occasioned by feuding spouses.
Bearing in mind that over the years, rates of divorce have increased in Botswana one can safely posit that a lot of people have been traumatized not so much by the decision of one spouse to walk away but rather by the manner in which divorce proceedings have to be conducted in courts.
As if the learned justices enjoy the spectacle as married people literally tore each other apart and shame each other in front of their families to the point where they could use raunchy audio and video clips to support their submissions, their line of questioning and the demand for evidence tends to incite spouses to adopt the approach used by controversial reality TV shows such as Uyajola and the famous American series, Cheaters.
In most cases, the spouses never disappoint as they seek to convince the courts, with parents revealing their bedroom secrets and/or exploits, practically telling the public how the other spouse is worse than a dog that can mate with its offspring and still be proud of its life.
The reality is that anyone of us may find themselves having to opt out of marriage for whatever reason and of course be required by the court to tell it all, by detailing the other spouse adulterous history or their incompetence between the sheets.
The present manner of adjudicating divorces while being in accordance with the law, is old-fashioned, humiliating and must be consigned to the animal kingdom. A judicial process that sponsors conflicts and hostilities and even asks children to choose between parents is primitive and can only be entertained by a society that is under the spell of evil law makers.
A lot of families especially children who have witnessed the hostility and enmity induced by a divorce process have been damaged beyond any repair. The hostile divorce proceedings mean that there is never any further relationship between the estranged parents and the hostility not only affects the children’s well-being and chances in life but bestows them a criminal mind.
If Botswana believes that the family is the natural unit and basis of society, we must seek to reduce family conflicts. While there are many ways to do so, it is believed that an overhaul of our law that regulates divorce procedures is mandatory if we are to effect positive changes in the matrimonial affairs of our society.
If we truly pride ourselves as an ever evolving democracy, we need to review this particular law among others so that it is brought in conformity with contemporary life.
Specifically, as a nation we need to simplify the divorce process without necessarily being seen as inciting people to hurry into a divorce every time they squabble.
When people marry, society gather to celebrate the union but when they divorce, the divorce procedures ensure that families and the community at large also have to split accordingly and/or fight so bitterly with an option for witchcraft.
Our society ought to find a way to make divorce proceedings less contentious and invasive so that families can continue to function after a divorce. For our society to handle divorce cases with humanity, there is a need to shift from a divorce law based on finding fault and blaming the other spouse to what has come to be known as no-fault divorce law.
This is a matter of national interest that should land in Parliament at the earliest opportunity so that it is cleared for the bureaucrats to commence public consultations before a Bill is presented in parliament.
It is also a matter that affects all across the political divide and should not be frustrated by the usual partisan bickering that often obstructs the making of urgent policies and legislation.
