When couples who either have a child in common or are bound by marriage or a civil union breakup they would need to formalise such a breakup. Before engaging in court litigation parties are bound to submit before a mediator and hash out disagreements between them on the matter. It is only once that it is clear that the mediation process will bear no fruit that the parties will be authorized to proceed with a separation before a court.
Mediators are appointed by the courts and do not charge any costs for their services. Before the mediator parties need not be assisted by a lawyer but it is always recommended that parties are assisted.
If parties reach an agreement on all the matters before the mediator the parties will submit the agreement to the court, which court will review the agreement to ensure that none of the parties is seriously prejudiced by the agreement. Should the court find that one of the parties or the children is prejudiced by this agreement it will ask the parties to re-submit to mediation.
Should the parties fail to come to an agreement before a mediator they would file an application before the court so that the court decides on the matters which they do not agree on.
If mediation is successful the court will authorize the parties to appear before a notary public and formalise the agreement into a public deed.
Mediation can also be used to help settle disputes between unmarried couples whenever there are children born out of wedlock. In such case, the mediator will help parties agree on how they will divide any assets they have in common, care and custody and access terms to children.
The mediation process always makes the court process easier since it helps parties come towards an agreement without first resorting to court ligation (which is both costly and time-consuming).
Mediation takes place in an informal environment and offers parties discussion before a mediator that will help the couple discuss their grievances and work towards an agreement. Mediation is done in a confidential manner and therefore anything said before the mediator is without prejudice before the courts. In practice, this means that even if one party admits fault before the mediator that admission may not be used in court by the other party against that party.
The mediator is also bound by professional secrecy and may never be summoned by the court to give evidence against what any party involved in the mediation process.
In the mediation process there is no "winner" or "looser", however, the objective of the process is to help parties agree on important financial and non-financial matters relating to their former family life.
Where the Family court is required to determine certain matrimonial issues they would need to determine who of the parties was responsible for the marriage breakdown. The law considers adultery, desertion, cruelty and threats and others reasons as good grounds for separation, as discussed here.
Parties may have an interest in proving that it was the other party’s fault for the marriage or the civil union to break down since this may entitle them to certain rights.
Article 48 of the Civil Code states that the party who is found responsible for giving rise to separation shall forfeit:
- the right to inherit his or her spouse;
- the right to continue living in the matrimonial home, even where the same tenement is held in full ownership or emphyteusis by the deceased spouse (who was the victim);
- all donations made to the victim either contemplation of marriage or during the marriage;
- the right to parts of the Community of Acquests that have been created by the other spouse during marriage through his or her work; and
- the right to compel the other spouse to supply him or her maintenance