Embracing Alternative Dispute Resolution (ADR) Mechanisms in Dissolution of Marriages and Matrimonial Property Cases
Family may be defined as the basic social unit that builds up a society. This is made possible by the right to marry. The right to marriage is therefore not only sacred but also facilitated and protected by the laws of the State. This is to the extent that divorce and dissolution of marriages is frowned upon as a matter of public policy. The Constitution of Kenya 2010 through article 45 (1) reiterates the centrality of family as a unit of society and as so it is to be protection. Article 45 (2) provides for the right of every adult to marry.
The International Convention on social, Cultural and Economic Rights through article 10 (1) also recognizes the status of family. This does not however mean that marriages do not get dissolved. It does not mean that families do not split. As much as the last census indicate that only about 1.5% of marriages end in divorce, these statistics may have just turned on their heads in the last eight years. This is considering the rapidly changing society and moral fabric. Simply put, there is likely more divorces and dissolution of marriages today as opposed to the past even with the reforms. This translates to more cases that take a long time for the courts to settle and everyone loses. ADR mechanisms are already in use in solving family disputes and dissolution of marriages especially customary law marriages in the form of TDRM. This paper however seeks to expand the idea to include, negotiation, mediation and even arbitration use in dissolution of marriages contracted by statutorily. Why not give parties to a divorce an option of ADR as opposed to an adversarial system?
Divorce and matrimonial property causes are ripe-so to speak- for the use of ADR mechanism. This is because of their personal nature. As much as they are regulated by State, family law falls more in the realm of personal law distinguishable from territorial law as discussed in the landmark case of Virginia Edith Wamboi Otieno V Joash Ochieng Ougo (1986) e KLR (S.M Otieno Case) The Constitution of Kenya 2010 in article 45 (4) (a) alludes to the personal nature of these cases. As much as many don’t think of them in that way, marriages exhibit the characteristics of contracts. They are based on consent, it is only a preserve of adults and there is an agreement resulting to rights and duties within the marriage. It may therefore not be wrong to give the parties a chance to choose on how to dissolution their marriage or share matrimonial properties as we readily do in contract law.
The Aspect of matrimonial Properties through the reforms in family law has made divorce matters more contentious.
The Constitution 2010 in article 45 (3), opens the door to matrimonial property law. It states that parties to a marriage have equal rights before, during and after a marriage.
Therefore this introduces matters of division of properties and custody of children. The jury is still out on whether matrimonial property Act applies to customary law marriages but what if parties to of a divorce were allowed to negotiate or mediate or go through arbitration as opposed to the adversarial system of litigation?
The personal nature of matrimonial causes always carries with it emotions and personal feelings. Sometimes they tend to get nasty and a lot of dirty linens get washed before a stranger (Judicial Officers) and sometimes the public. This can be solved by use of ADR mechanisms as parties have the flexibility to choose an adjudicator or even the venue and procedure of solving the cases. The adversarial nature of litigation does not always help in dealing with underlying issues that often characterize matters of divorce and matrimonial causes.
What are the advantages of ADR as opposed to litigation in matrimonial causes? If ADR mechanism where to be embraced fully, this will help ease the backlog of cases and allow judges to deal with cases that cannot be solved through ADR. The judiciary has been dealing with the issue of backlog for a very long time and perhaps this proposal may help as part of the solution. This will also help in expanding the area of ADR hence more work for arbitrators and mediators
The other advantage is expeditious disposal of cases. The Constitution 2010 in article 159 is crafted with the maxim justice delayed is justice denied. It encourages the use of ADR and TDRM, mechanism. If parties to a matrimonial cause are allowed to do ADR, there are chances that the matters will be handled expeditiously. This is because matters such as the calendrers are controlled by few people as opposed to litigation. The rules of evidence and matters of trial are different. This is also advantageous for couples who do not want to be dragged down by divorce cases
Lastly, there is the issue of cost. This is however relative depending on the method of ADR those parties may choose. If it is to be done expeditiously, it may be cheaper and worth it as ADR has also the reputation of giving win-win results as opposed to litigation which is adversarial in nature
In conclusion, the only thing that may work against embracing ADR fully in matrimonial causes is the feeling that it may be abused and therefore break the public policy that frowns upon divorce. This argument is however a see-saw as ADR may also be very instrumental in maintaining the public policy
By:Ouma Kizito Ajuong- Advocate