By Ravi Nanga
THIS article will examine an unfortunate but a very real topic – divorce.
In the event a couple gets married and they realise that the marriage is not working out, rather than stay married, it is possible that the marriage can be brought to an end by means of a divorce.
In Trinidad and Tobago there is only one ground for a divorce, and that is that the marriage has broken down irretrievably.
Proceedings in respect of seeking a divorce are commenced by the filing of a petition in the High Court.
There are two aspects of divorce proceedings, firstly the divorce petition, where once the court is satisfied that the marriage has broken down irretrievably, the divorce will be granted dissolving the marriage, and secondly, the ancillary relief, where custody and care of the children of the family (if any) and property settlement will be addressed by the court.
It is important to bear in mind that where there are children of the family, the court’s primary concern in granting a divorce and making any other orders will be the welfare of the children, and the court, in making any order will take the children’s well-being as being the paramount concern.
In order to satisfy the court that a marriage has broken down irretrievably a person is required to prove any of five facts. These five facts are self-explanatory.
The first fact is that the other party, referred to as the respondent, has committed adultery and the person filing for the divorce, referred to as the petitioner, finds it intolerable to live with the respondent. Therefore, if the respondent has an extra-marital affair, and the petitioner finds it intolerable to live with the respondent, the petitioner can file for a divorce.
The second fact is that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This fact examines the conduct of the respondent and it is necessary for the petitioner to give evidence of the type of conduct that is being complained of. For example, if the respondent is violent towards the petitioner or is psychologically abusive, these incidents will support the filing of a petition based on this fact.
The third fact is that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the filing of the petition. Therefore, if the respondent leaves the matrimonial home for a period of two or more years and does not return, the petitioner can file a Petition asking that the marriage be dissolved. This fact is commonly referred to as two-year desertion.
The fourth fact is that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the marriage being dissolved. In this case, it is not necessary for one party to have left the matrimonial home, as it is possible for persons to live under the same roof, but live separate and distinct lives. For example, if the parties sleep in separate bedrooms, are not part of each other’s lives and do not share an intimate relationship while living under the same roof, that may be sufficient to amount to living apart. Further, in the event this fact is being relied upon, it will be necessary for the respondent to consent. If there is no consent forthcoming, then the fact will not be established. This fact is commonly referred to as two-year separation with consent.
The fifth fact is that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. The concept of living apart is the same as in the case of living apart for two years set out above, however, where five years have elapsed, there is no requirement for the respondent to consent. This fact is commonly referred to as five-year separation.
In the event a person is able to establish one or more of these five facts, and is able to prove this to the court, the court will declare that the marriage has broken down irretrievably and dissolve the marriage. Even at this stage, where a court has declared that the marriage has broken down irretrievably, there is still an opportunity given for the couple to reconcile.
Once the court is satisfied that the marriage has broken down irretrievably, the court will grant the divorce, but this is done in two steps. The first step is that the court will grant what is called the decree nisi, meaning that the court is satisfied that the marriage has broken down irretrievably, but will further order that the decree nisi is not to be made absolute before a period of six weeks. What this does is to give the parties a period of six weeks to decide whether they really want to go through with the divorce.
Once the parties have decided that they are going through with the divorce, the second step is to apply to the court to obtain the decree absolute.
Upon obtaining the decree absolute, it is only at this time will the parties be legally divorced. While there is a minimum period of six weeks, the parties are not obligated to apply for the decree absolute upon six weeks passing.
It should be noted that a petition can only be presented without permission of the court after one year of marriage. If parties are of the view that the marriage has broken down irretrievably before one year of marriage has passed and they wish to file a petition immediately, it will be necessary to obtain permission from the court in order to file the petition. In such a case the petitioner will be required to prove why it is necessary to file the petition in less than a year after marriage.
Accordingly, in order to be able to obtain a divorce it is necessary for the petitioner to prove that the marriage has broken down irretrievably by satisfying one or more of the five facts stated above.
Ravi Nanga is an attorney.
Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations.