Section 12: joinder of the person alleged to have committed adultery
The unambiguous effect of these provisions, when read together with Section 42 of the Interpretation Act, 2009 (Act 792), is that the joinder of a named adulterer to a divorce petition is permissive and discretionary, rather than mandatory. Additionally, the exercise of judicial discretion to join a party to a suit is guided by Order 4 rule 5(2)(b) of C.I. 47, which empowers the Court to order the joinder of any person “who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon.” The operative test is therefore one of necessity.
The clear purpose of section 12 of Act 367, as enacted, is to ensure that, where the circumstances so warrant, the person alleged to have committed adultery may be joined to assist in the resolution of that allegation. The issue of adultery is notoriously difficult to prove. Save for clear admissions — whether oral, documentary, or by way of video or photographic evidence, adultery must ordinarily be established by circumstantial evidence.
Section 2(1): facts proving that the marriage has broken down beyond reconciliation
A marriage cannot be said to have broken down beyond reconciliation unless the Petitioner establishes one or more of the facts specified in section 2(1), and adultery is one of the principal facts upon which the Petitioner relies. The question whether the Respondent committed adultery with the Appellant is therefore not “diversionary”, to borrow the words of the Court of Appeal, but goes to the very heart of the Petitioner’s case.
The Court’s exercise of its discretionary power under this section is independent of the intentions behind the acquisition of any property by any spouse. Thus, guided by the principles of equity and justice, the Court may order any property, movable or immovable, irrespective of the intentions behind its acquisition, to be settled on either spouse, as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.
