Matrimonial Causes Act: Grounds for Divorce and Marital Property Settlement in Montserrat, Study notes of Law

Download Matrimonial Causes Act: Grounds for Divorce and Marital Property Settlement in Montserrat and more Study notes Law in PDF only on Docsity! MONTSERRAT CHAPTER 5.02 MATRIMONIAL CAUSES ACT Revised Edition showing the law as at 1 January 2002 This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act. This edition contains a consolidation of the following laws— Page MATRIMONIAL CAUSES ACT 3 Act 1 of 1948 .. in force 20 December 1948 Amended by S.R.O.: 15/1956 Amended by Acts: 2 of 1958 24 of 1982 Matrimonial Causes CAP. 05.02 3 Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT CHAPTER 5.02 MATRIMONIAL CAUSES ACT ARRANGEMENT OF SECTIONS SECTION 1. Short title 2. Restriction on petitions for divorce during first three years after marriage 3. Grounds for petition for divorce 4. Provision as to making adulterer co-respondent 5. Duty of court on presentation of petition for divorce 6. Dismissal of respondent or co-respondent from proceedings 7. Relief to respondent on petition for divorce 8. Duties of Attorney General 9. Provisions as to costs where Attorney General intervenes or shows cause 10. Decree nisi for divorce or nullity of marriage 11. Re-marriage of divorced persons 12. Decree of judicial separation 13. Divorce proceedings after grant of judicial separation or other relief 14. Decree for restitution of conjugal rights 15. Periodical payments in lieu of attachment 16. New grounds for decree of nullity 17. Damages 18. Proceedings for decree of presumption of death and dissolution of marriage 19. Jurisdiction in case of husband’s change of domicile 20. Wife’s property in case of judicial separation 21. Protection of third parties 22. Alimony 23. Power of Court to order settlement of wife’s property 24. Power of Court to make orders as to application of settled property 25. Custody of children 26. Commencement of proceedings as to maintenance, settlement of property, etc. 27. Power to vary orders 28. Power to allow intervention on terms 29. Evidence Matrimonial Causes CAP. 05.02 5 Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT CHAPTER 5.02 MATRIMONIAL CAUSES ACT (Act 1 of 1948, S.R.O. 15/1956, Acts 2 of 1958 and 24 of 1982) Commencement [20 December 1948] Short title 1. This Act may be cited as the Matrimonial Causes Act. Restriction on petitions for divorce during first three years after marriage 2. (1) No petition for divorce shall be presented to the High Court (in this Act referred to as “the Court”) unless at the date of the presentation of the petition three years have passed since the date of the marriage: Provided that a Judge of the Court may, upon application being made to him in accordance with rules of court, allow a petition to be presented before three years have passed 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 if it appears to the court at the hearing of the petition, that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree nisi, do so subject to the condition that no application to make the decree absolute shall be made until after the expiration of three years from the date of the marriage, or may dismiss the petition, without prejudice to any petition which may be brought after the expiration of the said three years upon the same, or substantially the same, facts as those proved in support of the petition so dismissed. (2) In determining any application under this section for leave to present a petition before the expiration of three years from the date of the marriage, the Judge shall have regard to the interests of any children of the marriage and to the question whether there is reasonable probability of a reconciliation between the parties before the expiration of the said three years. (3) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which have occurred before the expiration of three years from the date of the marriage. Grounds for petition for divorce 3. (1) A petition for divorce may be presented to the Court either by the husband or the wife on the ground that the respondent— 8 CAP. 05.02 Matrimonial Causes Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT (a) the Court may, if it thinks fit, direct all necessary papers in the matter to be sent to the Attorney General, who shall argue before the Court any question in relation to the matter which the Court deems to be necessary or expedient to have fully argued, and the Attorney General shall be entitled to charge the costs of the proceedings as part of the expenses of his office; (b) any person may at any time during the progress of the proceedings or before the decree nisi is made absolute give information to the Attorney General of any matter material to the due decision of the case, and the Attorney General may thereupon take such steps as he considers necessary or expedient; (c) if in consequence of any such information or otherwise the Attorney General suspects that any parties to the petition are or have been acting in collusion for the purpose of obtaining a decree contrary to the justice of the case, he may, after obtaining the leave of the Court, intervene and retain counsel and subpœna witnesses to prove the alleged collusion. Provisions as to costs where Attorney General intervenes or shows cause 9. Where the Attorney General intervenes or shows cause against a decree nisi in any proceedings for divorce or for nullity of marriage, the Court may make such order as to the payment by other parties to the proceedings of the costs incurred by him in so doing or as to the payment by him of any costs incurred by any of the said parties by reason of his so doing, as may seem just. Decree nisi for divorce or nullity of marriage 10. (1) Every decree for a divorce or for nullity of marriage shall, in the first instance, be a decree nisi not to be made absolute until after the expiration of six months from the pronouncing thereof, unless the Court by general or special order from time to time fixes a shorter time. (2) After the pronouncing of the decree nisi and before the decree is made absolute, any person may, in the prescribed manner, show cause why the decree should not be made absolute by reason of the decree having been obtained by collusion or by reason of material facts not having been brought before the court, and in any such case the court may make the decree absolute, reverse the decree nisi, require further inquiry or otherwise deal with the case as the court thinks fit. (3) Where a decree nisi has been obtained whether before or after the passing of this Act, and no application for the decree to be made absolute has been made by the party who obtained the decree, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom the decree Matrimonial Causes CAP. 05.02 9 Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT nisi has been granted shall be at liberty to apply to the court and the Court shall, on such application, have power to make the decree absolute, reverse the decree nisi, require further inquiry or otherwise deal with the case as the Court thinks fit. Re-marriage of divorced persons 11. As soon as any decree for divorce is made absolute, either of the parties to the marriage may, if there is no right of appeal against the decree absolute, marry again as if the prior marriage had been dissolved by death or, if there is such a right of appeal, may so marry again, if no appeal is presented against the decree, as soon as the time for appealing has expired, or, if an appeal is so presented, as soon as the appeal has been dismissed: Provided that it shall not be lawful for a man to marry the sister or half-sister of his divorced wife or of his wife by whom he has been divorced during the life-time of the wife, or the divorced wife of his brother or half-brother or the wife of his brother or half-brother who has divorced his brother during the lifetime of the brother or half-brother. Decree of judicial separation 12. (1) A petition for judicial separation may be presented to the Court either by the husband or the wife on any grounds on which a petition for divorce might have been presented, or on the ground of failure to comply with a decree for restitution of conjugal rights or on any ground on which a decree for divorce a mensa et thoro might have been pronounced immediately before the commencement of the Matrimonial Causes Act, 1857, and the foregoing provisions of this Act relating to the duty of the Court on the presentation of a petition for divorce, and the circumstances in which such a petition shall or may be granted or dismissed, shall apply in like manner to a petition for judicial separation. (2) Where the Court in accordance with the said provisions grants a decree of judicial separation, it shall no longer be obligatory for the petitioner to cohabit with the respondent. (3) The Court may, on the application by petition of the husband or wife against whom a decree for judicial separation has been made, and on being satisfied that the allegations contained in the petition are true, reverse the decree at any time after the making thereof, on the ground that it was obtained in the absence of the person making the application, or, if desertion was the ground of the decree, that there was reasonable cause for the alleged desertion. (4) The reversal of a decree for judicial separation shall not affect the rights or remedies which any other person would have had if the decree had not been reversed in respect of any debts, contracts or acts of the wife incurred, entered into or done between the date of the decree and of the reversal thereof. 10 CAP. 05.02 Matrimonial Causes Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT Divorce proceedings after grant of judicial separation or other relief 13. (1) A person shall not be prevented from presenting a petition for divorce, or the Court from pronouncing a decree of divorce, by reason only that the petitioner has at any time been granted a judicial separation upon the same or substantially the same facts as those proved in support of the petition for divorce. (2) On any such petition for divorce, the Court may treat the decree of judicial separation or the said order as sufficient proof of the adultery, desertion, or other ground on which it was granted, but the Court shall not pronounce a decree of divorce without receiving evidence from the petitioner. (3) For the purposes of any petition for divorce, a period of desertion immediately preceding the institution of proceedings for a decree of judicial separation or an order under the said Act having the effect of such a decree shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the petition for divorce. Decree for restitution of conjugal rights 14. A petition for restitution of conjugal rights may be presented to the Court either by the husband or the wife, and the Court, on being satisfied that the allegations contained in the petition are true, and that there is no legal ground why a decree for restitution of conjugal rights should not be granted, may make the decree accordingly. Periodical payments in lieu of attachment 15. (1) A decree for restitution of conjugal rights shall not be enforced by attachment, but where the application is by the wife the Court, at the time of making the decree or at any time afterwards, may, in the event of the decree not being complied with within any time in that behalf limited by the Court, order the respondent to make to the petitioner such periodical payments as may be just, and the order may be enforced in the same manner as an order for alimony in proceedings for judicial separation. (2) The Court may, if it thinks fit, order that the husband shall, to the satisfaction of the Court, secure to the wife the periodical payments, and for that purpose may direct that it shall be referred to counsel to settle and approve a proper deed or instrument to be executed by all necessary parties. New grounds for decree of nullity 16. (1) In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the ground— (a) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or Matrimonial Causes CAP. 05.02 13 Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT (i) where on any judicial separation alimony has been ordered to be paid and has not been duly paid by the husband, he shall be liable for necessaries supplied for the use of the wife; (ii) if the wife returns to cohabitation with her husband, any property to which she is entitled at the date of her return shall, subject to any agreement in writing made between herself and her husband while separate, be her separate property; (iii) nothing in this section shall prevent the wife from joining at any time during the separation in the exercise of any joint power given to herself and her husband. (2) In any case where the decree for judicial separation is obtained by the wife, any property to which she is entitled for an estate in remainder or reversion at the date of the decree, and any property to which she becomes entitled as executrix, administratrix or trustee after the date of the decree, shall be deemed to be property to which this section applies, and for the purpose aforesaid the death of the testator or intestate shall be deemed to be the date when the wife became entitled as executrix or administratrix. Protection of third parties 21. (1) Where a wife obtains a decree for judicial separation, the decree shall, so far as may be necessary for the protection of any person dealing with the wife, be valid and effectual until discharged, and the discharge or variation of the decree shall not affect any rights or remedies which any person would have had, if the decree had not been discharged or varied, in respect of any debts, contracts or acts of the wife incurred, entered into or done during the period between the date of the decree and the discharge or variation thereof. (2) Any person who, in reliance on any such decree as aforesaid, makes any payment to or permits any transfer or act to be made or done by the wife, shall, notwithstanding the subsequent discharge or variation of the decree, or the fact that the separation has ceased or has been discontinued, be protected and indemnified in the same way in all respects as if at the time of the payment, transfer or other act the decree were valid and still subsisting without variation in full force and effect, or the separation had not ceased or been discontinued, as the case may be, unless at that time that person had notice of the discharge or variation of the decree or that the separation had ceased or been discontinued. Alimony 22. (1) The Court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money or annual sum of money for any term, not exceeding her life, as having regard to her fortune, if any, to the ability of her husband and to the conduct of the parties, the Court 14 CAP. 05.02 Matrimonial Causes Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT may deem to be reasonable, and the Court may for that purpose order that it shall be referred to counsel to settle and approve a proper deed or instrument, to be executed by all the necessary parties, and may, if it thinks fit, suspend the pronouncing of the decree until the deed or instrument has been duly executed. (2) In any such case as aforesaid the Court may, if it thinks fit, by order, either in addition to or instead of an order under subsection (1), direct the husband to pay to the wife during the joint lives of the husband and wife such monthly or weekly sum for her maintenance and support as the court may think reasonable: Provided that— (a) if the husband, after any such order has been made, becomes from any cause unable to make the payments, the Court may discharge or modify the order, or temporarily suspend the order as to the whole or any part of the money ordered to be paid, and subsequently revive it wholly or in part as the Court thinks fit; and (b) where the Court has made any such order as is mentioned in this subsection and the Court is satisfied that the means of the husband have increased, the Court may, if it thinks fit, increase the amount payable under the order. (3) On any petition for divorce or nullity of marriage the Court shall have the same power to make interim orders for the payment of money by way of alimony or otherwise to the wife as the Court has in proceedings for judicial separation. (4) Where any decree for restitution of conjugal rights or judicial separation is made on the application of the wife, the Court may make such order for alimony as the Court thinks just. (5) In all cases where the Court makes an order for alimony, the Court may direct the alimony to be paid either to the wife or to a trustee approved by the Court on her behalf, and may impose such terms or restrictions as the Court thinks expedient, and may from time to time appoint a new trustee if for any reason it appears to the Court expedient so to do. Power of court to order settlement of wife’s property 23. (1) If it appears to the Court in any case in which the Court pronounces a decree for divorce or for judicial separation by reason of the adultery, desertion, or cruelty of the wife that the wife is entitled to any property either in possession or reversion, the Court may, if it thinks fit, order such settlement as it thinks reasonable to be made of the property, or any part thereof, for the benefit of the innocent party, and of the children of the marriage or any or either of them. Matrimonial Causes CAP. 05.02 15 Revision Date: 1 Jan 2002 LAWS OF MONTSERRAT Any instrument made under any order of the Court made under this section shall be valid and effectual, notwithstanding the existence of coverture at the time of the execution thereof. (2) Where the application for restitution of conjugal rights is by the husband, and it appears to the Court that the wife is entitled to any property, either in possession or reversion, or is in receipt of any profits of trade or earnings, the Court may, if it thinks fit, order a settlement to be made to the satisfaction of the Court of the property or any part thereof for the benefit of the petitioner and of the children of the marriage or either or any of them or may order such part of the profits of trade or earnings, as the Court thinks reasonable, to be periodically paid by the respondent to the petitioner for his own benefit, or to the petitioner or any other person for the benefit of the children of the marriage, or either or any of them. Power of Court to make orders as to application of settled property 24. The Court may after pronouncing a decree for divorce or for nullity of marriage enquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or any part of the property settled either for the benefit of the children of the marriage or of the parties to the marriage, as the Court thinks fit, and the court may exercise the powers conferred by this section notwithstanding that there are no children of the marriage. Custody of children 25. (1) In any proceedings for divorce or nullity of marriage or judicial separation, the Court may from time to time, either before or by or after the final decree, make such provision as appears just with respect to the custody, maintenance and education of the children, the marriage of whose parents is the subject of the proceedings, or, if it thinks fit, direct proper proceedings to be taken for placing the children under the protection of the Court. (2) On an application made in that behalf the Court may, at any time before final decree, in any proceedings for restitution of conjugal rights, or, if the respondent fails to comply therewith, after final decree, make from time to time all such orders and provisions with respect to the custody, maintenance and education of the children of the petitioner and respondent as might have been made by interim orders if proceedings for judicial separation had been pending between the same parties. (3) The Court may, if it thinks fit, on any decree of divorce or nullity of marriage, order the husband, or (in the case of a petition for divorce by the wife on the ground of her husband’s insanity) order the wife, to secure for the benefit of the children such gross sum of money or annual sum of money as the Court may deem reasonable, and the Court may for that purpose order that it shall be referred to counsel to settle and approve a proper deed or instrument to be executed by all necessary parties: Printed by the Law Revision Unit of the Government of Montserrat Authorised Printers for this revised edition