Once you have decided that your marriage has irretrievably broken down, and that marital life is no longer possible or non-existent between you and your spouse, and you want to get a divorce, you need to retain the services of an Attorney at Law (Avoué) to draft and lodge the paper work involved in getting a divorce, and a Barrister at Law (Avocat) to represent you in court. Some lawyers specialise in family law and deal with divorce cases on a daily basis. Once the divorce petition is lodge, you will be given a date to attend court at the Supreme Court of Mauritius (Family Division), Port Louis for your legal representative to present the petition (called the Presentation) to the Judge. The Judge may ask the parties some questions and attempt to find an agreement. If the Judge is satisfied that reconciliation is not possible, His Lordship will fix a date for the hearing of the case (called the Merits). You have to appear in person on all occasions. After hearing the case, the Judge will pronounce a temporary divorce decree (“vinculo matrimonii”). Thereafter, if within a period of three (3) months, the parties have not reconciled and resumed matrimonial life, the Judge will pronounce a permanent decree of divorce which will be final.

What are the Documents Needed?

• A recent copy of your Marriage Certificate (issued within 3 months),

• A recent copy of your Birth Certificate,

• Your National Identity Card,

• If divorce by mutual consent, both spouses will need to provide the above and you will also have to make an agreement which will govern the effects and consequences of the divorce to which you will both have to consent freely to and sign, and

• A recent copy of the Birth Certificate of any child(ren) born of the marriage.

What are the Types of Divorce available in Mauritius?

According to Article 229 of the Mauritian Civil Code (“Code Civil Mauricien”), divorce may be pronounced-

(1) in the case of fault (“faute”);

(2) in the event of a breach of common conjugal/marital life (“rupture de la vie commune”);

(3) if the principle of rupture of the marriage is accepted (“acceptation du principe de la rupture du mariage”); or

(4) in the case of mutual consent (“consentement mutuel”).

I – DIVORCE FOR FAULT (“DIVORCE POUR FAUTE”)

Article 230. Divorce may be requested by a spouse for acts attributable to the other, where such acts constitute a serious or renewed violation of the duties or obligations of the marriage.

Article 231. Divorce may be requested by a spouse when the other has been sentenced to a common criminal penalty of at least five (5) years of criminal servitude.

Article 232. The reconciliation of the spouses since the alleged facts prevents them from invoking them as a cause of divorce.

The judge then declares the application inadmissible. A new application may, however, be made on account of facts which have occurred or have been discovered since the reconciliation, and the former facts may then be recalled in support of this new application.

The temporary maintenance or resumption of communal life is not regarded as a reconciliation if it results only from the necessity or conciliation effort or the needs of the education of the children.

Article 233. The faults of the spouse who initiated the divorce do not prevent the examination of his application;

They may, however, deprive the spouse of the character of gravity which would have made him a cause of divorce.

These mistakes may also be invoked by the other spouse in support of a counterclaim in divorce. If both applications are allowed, the divorce is pronounced to the shared wrongs.

Article 234. Even in the absence of a counterclaim, divorce may be pronounced on the joint wrongs of the two spouses if the debates reveal wrongs to be borne by one or the other.

II – DIVORCE FOR BREACH OF COMMON LIFE (“DIVORCE POUR RUPTURE DE LA VIE COMMUNE”)

Article 235. A spouse may apply for a divorce on account of a breakdown in the marital/conjugal life of the spouse when the spouses have been separated in fact for three (3) years.

Article 236. A spouse applying for a divorce for breach of common life shall bear all the burdens. In his application he must specify the means by which he will perform his obligations towards his spouse and children.

Article 237. If it is established that the means specified by the applicant are insufficient to preserve the material interests of the other spouse and the common children, the judge shall reject the application.

Article 238. The breach of the common life may be invoked as a cause of divorce only by the spouse who makes the initial application, called the principal claim.

The other spouse can then file an application, called a counterclaim, claiming the wrongs (fautes) of the person who took the initiative. This counterclaim can only be for divorce and not separation of body (“separation de corps”). If the judge admits it, he rejects the main claim and pronounces the divorce on the wrongdoing of the spouse who took the initiative.

III – DIVORCE BY ACCEPTANCE OF THE PRINCIPLE OF RUPTURE OF MARRIAGE (“DIVORCE PAR ACCEPTATION DU PRINCIPE DE LA RUPTURE DU MARIAGE”)

Article 238-1. Divorce may be requested by one or both of the spouses when they accept the principle of marriage breakdown regardless of the facts giving rise to the marriage but not of its effects or consequences. Divorce by acceptance of the principle of marriage breakdown may not be requested during the first twenty-four (24) months of the marriage.

Article 238-2. The judge to whom the application is made examines it with each of the spouses and then brings them together.

He makes sure that every effort has been made to try to reconcile them.

If he has become convinced that the will of each spouse is real and that each of them has freely given his consent, the judge pronounces the divorce and decides on its consequences.

IV – DIVORCE BY MUTUAL CONSENT (“DIVORCE PAR CONSENTEMENT MUTUEL”)

Article 238-3. Divorce may be requested jointly by the spouses when they agree on the breakdown of the marriage and its effects by submitting an agreement regulating the consequences of the divorce to the judge for approval.

The request may be lodged either by the respective attorneys of the parties or by a solicitor chosen by mutual agreement.

Divorce by mutual consent can not be requested during the first twenty-four (24) months of the marriage.

Article 238-4. The judge to whom the application is made examines it with each of the spouses and then brings them together. He makes sure that every effort has been made to try to reconcile them.

The judge pronounces the divorce if he has acquired the conviction that the will of each spouse is real and that each of them has freely given his consent.

It shall, by the same decision, approve the agreement regulating the consequences of divorce and homologate the agreement.

Article 238-5. The judge may refuse homologation and not divorce if he finds that the agreement insufficiently preserves the interests of the children or of one of the spouses.

He may also have the clauses of this agreement removed or modified which appear to him to be contrary to the best interests of the children or of the spouse.

When the divorce is pronounced and the agreement homologated, the spouses themselves give effect to the consequences of the divorce settled by the agreement.

Content in this article is for information purposes only and does not constitute legal advice.

DIVORCE IN MAURITIUS

Application made by a parent to take a child to settle abroad

Custody of a child is usually a concern when a couple decides to petition for a divorce or that they are no more living together. Before the divorce, both parents will have full parental rights and responsibilities if nothing has been decided yet by the court pending the divorce procedures. The parents will still be equal guardians after the divorce even f they live apart.

For the determination of the custody it is the Supreme Court(Family Division) that will adjudicate upon who will be the main care-giver( the parent with whom the child will primarily reside) of the child. In situations where the parents of a child are no more living together and each of them is seeking custody, the approach of the court is that there should be an attempt at reconciling the interests of the parents and all others concerned with those of the child which should however be regarded as the most important.

The principles taken into consideration upon an application being made by a parent who has obtained custody to take the child to settle down outside of the Republic of Mauritius are as follows:-

• Firstly, whether it is in the interest of the child to remain with the parent who has been granted custody;

• Secondly, whether the parent who has been given custody has a legitimate motive for desiring to live away from the country;

• Thirdly, whether any particular benefit which the child would derive from continuing to be with that parent would not be outweighed by the prejudice that might ensue to the child from the change in circumstances brought about ( the balancing exercise); and

• Lastly, whether suitable and adequate provision can be arranged for maintaining as far as possible contacts between the child and the other parent and family.

When taking into consideration all the principles above, the paramount factor that the court will take into account is where does the best interest of the child lies and where is the child's prospects the brightest.