Report No. 71

7.3. Provision as to children in the English Act.-

In this context, the English Act contains an important restriction on the grant of a decree absolute for divorce.1 Section 41 of the Act is quoted below:-

"41. (1) The Court shall not make absolute a decree of divorce or of nullity of marriage, or grant a decree of judicial separation, unless the court, by order, has declared that it ii satisfied:-

(a) that for the purposes of this section there are no children of the family to whom this section applies; or

(b) that the only children who are or may be children of the family to whom this section applies arc the children named in the order and that

(i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or

(ii) it is impracticable for the party or parties appearing before the court to make any such arrangements; or

(c) that there are circumstances making it desirable that the decree should be made absolute or should be granted, as the case may be, without delay notwithstanding that there are or may be children of the family to whom, this section applies and that the court is unable to make a declaration in accordance with paragraph (b) above.

(2) The court shall not make an order declaring that it is satisfied as mentioned in sub-section (1)(c) above unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time.

(3) If the court makes absolute a decree of divorce or of nullity of marriage, or grants a decree of judicial separation, without having made an order under sub-section (1) above the decree shall be void but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by sub-sections (1) and (2) above were not fulfilled.

(4) If the court refuses to make an order under sub-section (1) above in any proceedings for divorce, nullity of marriage or judicial separation it shall, on an application by either party to the proceedings, make an order declaring that it is not satisfied as mentioned in that sub-section.

(5) This section applies to the following children of the family, that is to say-

(a) any minor child of the family who at the date of the order under sub-section (1) above is

(i) under the age of sixteen, or

(ii) receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment; and

(b) any other child of the family to whom the court by an order under that sub-section directs that this section shall apply; and the court may give such a direction if it is of opinion that there are special circumstances which make it desirable in the interest of the child that this section should apply to him.

(6) In this section 'welfare', in relation to a child, includes the custody and education of the child and financial provision for him."

1. Section 41, Matrimonial Causes Act, 1973.