Legal Clinic: How will remarriage affect divorce terms?

No framework to determine value of non-monetary contribution towards acquisition of matrimonial property
Women’s contribution ‘not protected’ under matrimonial property law
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What you need to know:

  • Even as you engage in this process, be aware; that there is no guarantee that either or both of you will not renege the expectations or commitments of the proposed marriage is no guarantee that the community around you, and especially if this is to be driven customarily, will entertain the new union.
  • This is as much a personal decision, as it could be a community rejection.
  • For your information, you now join the likes of Liz Taylor and Richard Burton, besides Ellon Musk and Talulah Riley, who took the path of remarrying their once divorced spouses. 

Hello Eric,
My wife and I have been divorced for several years, but we are now thinking of getting back together.

Would a remarriage to a former spouse null and void the terms of a separation agreement from the first marriage?

The divorce was nasty and I was just wondering about that.

Hi Reader,
You have commenced a fragile but important conversation that sets the beauty of marriage and the imagined savagery of divorce in the shifting paradigms of people’s decision, culture, law and global assumptions on the idealness of unions. 
The Marriage Act of 2014 at Part IX has opened each marriage for registration irrespective of its originality, and if the same was not prohibited or voided according to sections 10 and 11 respectively.

This means that divorce is given a similar allocation of time, space and definition. 
Since you seek to remarry your former wife,  our assumption is that your first marriage must have desisted owing grounds provided for at Section 66, 68, 69 and 70 of the Marriage Act. This is important since you seek to begin a new life as husband and wife.

At the point at which the court declared your former marriage null and void, a Decree Absolute was issued to bury this union. 
In essence, this document (Decree Absolute), which is a final order given by a competent court to a petitioner, does two things: first, it sets free the couple, separates them and terminates their marital obligations that existed there before; secondly, it creates a new identity, having been relieved of union commitments, of a bachelor and spinster. 

Decree of divorce

However, copies of this decree of divorce must be sent to the Registrar for recording in the appropriate register regarding the dissolution of marriages. 
In the language of ordinary communication, the two, man and woman slip into a life of singlehood. In law, as provided in section 75 of the Marriage Act, you have just begun your new life to seek a new wife.

Nothing holds you back from remarrying your former wife, now the new girlfriend.
However, your former marriage likely ended with an accompanying Divorce Settlement Agreement (DSA), as an order of the court.

This could be about the division of matrimonial property, sharing of parental responsibilities outside marriage, and custody of children if any, amongst the rights that accrue upon dissolution of a union. In seeking to engage in a new relationship, as a married couple, both of you require to revisit the details of such an order to find space and mechanisms to denounce or affirm the obligations set in and by it. 

Divorce settlement

What both of you must remember is that the property that may have become personal following the divorce settlement shall remain so, as pre-nuptial assets and cannot be re-constituted as joint. 
This will require that you go back to the same court or another of equal jurisdiction, situate at the family division of the high court, and pray for the revocation of this order so that you are freed to commence a new life.

It is not automatic that the court would grant such a revocation since the prerogative to do so lies with the judge.

Should you and your former wife, reach this point, then the remarriage will be directed by the provisions of the Marriage Act at Sections 3 and 6. Now you know.

Be aware

Even as you engage in this process, be aware; that there: is no guarantee that either or both of you will not renege the expectations or commitments of the proposed marriage. is no guarantee that the community around you, and especially if this is to be driven customarily, will entertain the new union. This is as much a personal decision, as it could be a community rejection. For your information, you now join the likes of Liz Taylor and Richard Burton, besides Ellon Musk and Talulah Riley, who took the path of remarrying their once divorced spouses. In conclusion, we share this quote from some anonymous source which says “I feel like everything in my life has led me to you. My choices, my heart breaks and my regrets. Everything. And when we are together, my past seems worth it. Because if I had done one thing differently, I may have never met you.”

***
Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director of the LegalResources Foundation. Legal query? E-mail [email protected]


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