Divorce is the legal process through which the Family Court formally dissolves a marriage. Even if spouses are separated, they remain legally married and cannot remarry unless they obtain a divorce or have their marriage annulled.
A divorce application may be submitted to the Family Court either by one spouse individually or jointly by both spouses.
Requirements for Divorce
Any individual may request a divorce, provided the conditions outlined in Article 66B of the Civil Code are met:
- The spouses must have lived apart for at least six months (if applying jointly) or one year (if applying individually).
- There must be no reasonable prospect of reconciliation.
- The spouses must continue to provide maintenance for each other and/or their children, if applicable.
If the Family Court is satisfied that these conditions are fulfilled, it will grant the divorce as per Article 66C. Importantly, the spouse requesting the divorce is not required to prove fault or blame, as stated in Article 66D.
Legal Effects of Divorce
Once divorced, both parties are free to remarry. However, the divorce decree does not affect parental rights or responsibilities, nor does it alter any agreements made regarding the care and upbringing of children.
Maintenance following divorce
If a person receiving maintenance remarries or enters into a relationship that creates a new maintenance obligation from a third party, they lose the right to receive maintenance from their previous marriage. This applies even if the separation agreement stated that maintenance would continue, unless otherwise specified.
Converting Separation Proceedings into Divorce
During separation proceedings—provided the Court has not yet issued a judgment—an application for divorce may be added. If the Court finds that the divorce requirements are met, it may approve the divorce request.
Guarantee for Maintenance Payments
If a spouse is subject to a maintenance order and has outstanding arrears, the Family Court may be reluctant to grant a divorce. In such cases, the Court might require a guarantee, such as a bank guarantee, to ensure future maintenance payments. This is typically ordered only if the spouse has previously defaulted or if circumstances justify such a measure.
Duration
Most divorce applications are conclude in a matter of 8 weeks, however the process will take longer if there are problems with notifying one of the spoues or opposeses to the divorce application.
Lawyer’s Responsibilities in Divorce Cases
Lawyers assisting in divorce applications must:
- Discuss the possibility of reconciliation with the applicant.
- Provide contact details of professionals who can assist with reconciliation.
- Inform the applicant about separation as an alternative to divorce—unless the applicant is the respondent or the couple is already separated by contract or court judgment.
