Divorce

What is divorce?

Divorce is the legal dissolution of a marriage and is governed by the Matrimonial Proceedings and Property Act Chapter 45:51 (hereinafter referred to as “the MPPA”).

What are the prerequisites to apply for a divorce?

• Must be married for at least one (1) year:

According to Section 5 of the MPPA, to obtain a divorce, the petitioner (the spouse initiating the process) and the respondent (the person against whom proceedings are brought) must have been married for at least one (1) year. However, an application can be made to the Court, to allow the presentation of a petition for divorce within the one-year period, on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent; but in determining the application the Judge shall take into consideration, the interests of any child of the family and whether there is a chance of reconciliation between the parties during the specified period.

• Domiciled in Trinidad and Tobago:

Section 2A of the MPPA suggests that one of the parties must either be domiciled in Trinidad and Tobago on the date the divorce proceedings began or that one party was habitually resident in Trinidad and Tobago throughout the period of one (1) year ending with that date when the divorce proceedings began.

Ground for Divorce:

There is one (1) ground for a divorce. The petitioner must prove that the marriage has irretrievably broken down according to Section 3 of the MPPA, which states,

“After the commencement of this Act the sole ground on which a petition for divorce may be presented to the Court by either party to a marriage shall be that the marriage has broken down irretrievably.”

Facts to be proven to support the irretrievable breakdown of the marriage:

In order to prove that the marriage has broken down irretrievably, Section 4 of the MPPA states five (5) facts which the petitioner must establish at least one to prove irretrievable breakdown. Section 4 states,

“4.(1) The Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the Court of one or more of the following facts:

• that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

• that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
• that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

• 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 a decree being granted;

• 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 Court then has a duty to inquire, as it reasonably can, into the facts alleged by both the petitioner and the respondent. Once the Court is satisfied with all the evidence that the marriage has broken down irretrievably, it will grant a “decree nisi” of divorce once doing so will not cause grave financial hardship or, in all circumstances, be wrong to dissolve the marriage.

What is a decree nisi?

A decree nisi is a provisional decree of divorce granted by the Court when the legal and procedural requirements for divorce are met. However, please note that the parties are still legally married after a decree nisi is granted until the “decree absolute” is obtained, which officially and legally ends the marriage. The application for the decree absolute is made at least six (6) weeks after the decree nisi has been granted.

The divorce process:

• Filing the petition:

The petitioner files a petition for divorce at the Family Court, outlining the facts in support of the ground for divorce and provides supporting evidence.

• Serving the petition:

The respondent would be formally served with the documents by an officer of the Court and will have an opportunity to respond to or contest the petition at the date set for the hearing.

• Hearing:

A date for hearing the petition will be fixed, and the court will examine the evidence presented by both parties. If satisfied, as mentioned above, the Court will issue a decree nisi, signifying that the Court sees no reason why the divorce should not be granted.

• Decree absolute:

After six (6) weeks from the grant of the decree nisi, the petitioner can apply for the decree absolute, which officially ends the marriage. It must be noted, however, that where children are involved, and the parties have not made proper arrangements for them, the Court may not grant the decree nisi unless this issue is resolved.