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Granting divorce

At some point during the marriage ceremony the priest intones words to the effect of “what God hath joined together let not man put asunder”.

In times past in Barbados those words were taken almost literally, the underlying theory being that society had a vested interest in maintaining the institution of marriage.

Consequently divorce was a thing almost unheard of, with proof of adultery and desertion for inordinately long periods of time being required. In addition, divorce applications were heard in open court given the societal element which I am sure made for some rather uncomfortable proceedings.

With the advent of the Family Law Act in 1982 there was a sea of change in relation to the termination of marital relations even though it paid lip service in section 22 to “the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life”.

The only ground for the dissolution of a marriage is that provided in section 27, namely that the marriage has broken down irretrievably and the only evidence of this required is that the parties have lived separately and apart “for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage”. It matters not whether either spouse cheated with 50 persons or one, nor whether they gave more money to another individual than they gave to you.

In marriage there is the concept of consortium, which loosely defined is the normal relations of man and wife such as sexual intercourse, companionship, housekeeping and so on. The termination of such marital relations amounts to separation so that even if the parties continue to reside in the same residence they will still qualify as having been separated for the requisite 12 month period.

Any resumption of marital relations which are insubstantial do not negate the period of separation, but should in no case exceed 3 months in duration as prescribed by sections 29 and 30.

During the attorney/client conference and for the duration of the matter the attorney-at-law is under a duty to advise as to facilities for promoting reconciliation such as marriage counselling and is required to certify to the court on the application that those responsibilities have been discharged.

It is also a requirement that in serving the application on the respondent spouse that information be provided as to “the legal and possible social effects of proposed proceedings (including the consequences for children of the marriage); and the counselling and welfare services available”.

Pursuant to section 20 of the act, the application for dissolution is filed in the Supreme Court and the applicant must be a citizen, permanent resident, domiciled in Barbados or an immigrant residing in Barbados for at least the year immediately preceding the application. Without discussing reams and reams of case law, domiciled in layman’s terms means having substantial ties to Barbados including for example, large-scale assets and a main residence here.

The hearing of the application for dissolution now takes place behind closed doors. Only the judge, the parties and their attorneys, the court clerk and marshal are present in a conference room setting known as chamber court, with section 74 cautioning against “undue formality”.

Divorce is granted in two parts, first the decree nisi (section 34) and the second being the decree absolute. In order to obtain the decree absolute of divorce the court must make an order under section 42 that it is satisfied either that there are no children of the marriage under the age of 18 years at the time of making the order or that proper arrangements have been made where there are in fact minor children. The divorce will not be granted if you cannot satisfy the court as to the arrangements for your children. You will rarely hear any of this being spelt out in any great detail in court as the attorney in a simple case will ask for “orders pursuant to sections 27 and 42” since it is safe to assume that the judge knows precisely what that means.

The divorce becomes absolute or final at the expiration of one month from the date on which the court makes the order but you are not free to marry anyone else unless and until the document evidencing this is obtained from the Supreme Court Registry.

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