Divorce is governed by Chapter II of Book II of Law No. 72.61 of 12/06/1972, as amended, concerning the Family Code. It can only result from a court decision.

Article 157 of the Family Code provides for two types of divorce:

-divorce by mutual consent, where the spouses agree on the principle of divorce, the division of jointly acquired assets, child custody, and the spouses' contribution to child support.

Contested divorce, which can only be granted on one of the grounds stipulated by law, may result in the payment of damages. The divorce procedure is quite formal. It requires the personal appearance of both spouses, at least initially. It also requires the production of certain civil status documents: the marriage certificate, the family record book, the children's birth certificates, and, if applicable, their death certificates. The need for these civil status documents is easily explained. Within the scope of their duties, the family court judge can only rule on elements whose reality is established by indisputable legal acts. Granting a divorce amounts to establishing a legal status. This legal status can only have meaning if a previous legal status, namely marriage, has been established. Article 29 of the Family Code states that: “The status of persons is established and can only be proven by civil status documents.” In other words, the judge can only pronounce the divorce once the marriage has been established.

However, obtaining marriage certificates and birth or death certificates is a real headache for those seeking justice. Indeed, a very large proportion of the Senegalese population does not register their marriages or the births of their children with the civil registry.

To comply with the law, particularly articles 159 and 168 of the Family Code, the litigant must then submit three other requests before their divorce proceedings can be initiated:

-a request for authorization to register a marriage,

-a request for authorization to register a birth, -a request for authorization to register a death.

Processing these requests can take time. The courts are overloaded, and once decisions are rendered, it is necessary to wait for the appeal periods to expire, which, under Article 17 of the Code of Civil Procedure, are two

(02) months.

Those seeking justice thus embark on a veritable obstacle course that takes an abnormally long time.

However, divorce, especially contested divorce, is often a family rift fueled by resentment, hatred, and grief, where each spouse typically tries to create as many problems as possible for the other. It's not uncommon to see the man try to keep the woman in this limbo where she cannot remarry until the divorce is finalized, while the woman desperately wants to escape the marriage she no longer feels comfortable in.

Divorce proceedings must, therefore, be accelerated in certain situations to alleviate the social dramas they generate.

It would therefore be wise to allow the judge presiding over a divorce proceeding to resolve, in a single proceeding, all the legal issues that may arise during the proceedings. The judge could then, in a single decision:

-to confirm the existence of the marriage and authorize its registration,

-to record births and, where applicable, deaths of children and authorize their registration,

-finally, pronounce the divorce between the spouses.

Specifically, the file would include the following documents:

- the petition for divorce specifying that the marriage was not registered in the civil registry, nor were the births and deaths of the children, - certificates of non-registration concerning the marriage, births, and deaths,

-a certificate of residence,

- the identity documents of four witnesses, two from each spouse's side. The hearing would be held in chambers with the mandatory appearance of the spouses (at least at the beginning of the proceedings) and the witnesses.

The appearance of children would also be mandatory, but only when it comes to determining their births and ages. Furthermore, it is possible to devise a system where children appear only with one of their parents to avoid the trauma of their parents' divorce.

The decision can still be announced in a public hearing.

Article 833 of the Family Code already lays out a draft of this system. It is interesting to quote it from paragraph 6: “... By way of derogation from the provisions of paragraph 3 above and of articles 29, 159 and 168, spouses are exempt from producing their marriage certificate when, in the course of divorce or legal separation proceedings, they allege that no certificate was drawn up of their union celebrated in the customary form and which took place before the entry into force of this Code.

If the spouses appear before him to have their divorce or legal separation by mutual consent recorded, the justice of the peace specifies the date and terms of the marriage.

In the event of a contested divorce or legal separation, the spouses are asked during the conciliation attempt to specify the date and terms of their marriage.

In the event of concurring statements, they are duly acknowledged.

If the defendant spouse disputes the existence of the marriage alleged by the plaintiff, the latter is referred to the court of first instance which has jurisdiction to hear the preliminary question.

When the defendant spouse is in default, the plaintiff must substantiate their allegations by establishing their status as spouse through an inquiry conducted before the justice of the peace hearing the divorce or legal separation application. Whether proof of the existence of the union has been presented to the justice of the peace by the concurring declaration of the spouses, by an inquiry carried out at the plaintiff's initiative, or by a final and recorded decision on the preliminary issue, the justice of the peace shall state, in the operative part of their judgment, the date and terms of the marriage, rule on the application, and order that the divorce or legal separation be recorded in the margin of each spouse's birth certificate.

This article, part of the transitional provisions, allows the judge to recognize both the marriage and the divorce in a single ruling. It goes further by simplifying the procedure followed by the judge in making a decision. Indeed, the simple, concurring declarations of the spouses are sufficient to establish and set the date of the marriage. In the event of conflicting declarations, an investigation is initiated. It is only when the existence of the marriage is contested that the court of first instance is called upon to rule on this issue, which will then be a preliminary matter to the divorce proceedings.

It therefore appears that the simplification of the proposed procedures is not entirely new.

Continuing with this same idea of simplification, the time limit for appealing decisions made by the lower courts could be revised.

Article 17 of the Code of Civil Procedure states that: “The time limit for appealing judgments at first instance is two months. This time limit runs from the day the judgment is pronounced if it is adversarial and from the day of its notification if it is by default…”.

This two-month period is anachronistic. It contrasts sharply with the one (1) month appeal period generally in effect in Senegalese courts. Furthermore, its actual usefulness has not been clearly demonstrated.

It would therefore be more advantageous to reduce the appeal period to one (01) month.

Boubacar Ndiaye Fall, magistrate