About Divorce

There are two types of divorces namely:-

Joint Petition

whereby both parties agree to the divorce;

Single Petition

Whereby only one party petitions for the divorce.

Single Divorce Petition

Procedure

Obtain the Certificate from the Marriage Tribunal (this would take about 3 – 6 months)

Filing of the Joint Divorce Petition in Court

Serving of the Joint Divorce Petition to your Spouse

Mediation before the High Court Judge

Hearing of the Joint Petition in Court

The whole process may take 9 months to 3 years depending on the complexity of the case

Grounds of Divorce

The accepted grounds for Divorce are adultery, unreasonable behaviour, desertion and living apart for at least two years.

What do you want in the Petition

Divorce

Maintenance to the wife

Maintenance to the Child/Children

Custody of the Child/Children (whether to the wife or husband)

Division of Matrimonial Assets

Documents needed for the presentation of a Joint Divorce Petition

Certificate of Marriage

Identification card of the parties

Birth Certificate of the Child/Children

Documentation of the matrimonial asset(s)

Spousal Maintenance

Spousal maintenance is the monetary support provided by the ex-spouse following a divorce. After the divorce, the court may order the husband to pay maintenance to his ex-wife/spouse by taking into account his earning capacity and financial needs. In some cases (rarely), the court may also order the woman to pay for her ex-husband/spouse maintenance provided only if he is not capable of making a living on his own.

Usually in a joint petition case, there is usually a term specified for the husband to provide maintenance to his ex-wife/spouse unless his ex-wife/spouse has agreed beforehand to not demand for any maintenance. If the ex-wife is employed and earns her own income, it will not affect her right to claim for maintenance for her ex-husband/spouse. The court will weigh the factors of the situation and decide how much maintenance should be paid by the ex-spouse.

If there are maintenance payments that should be made after the divorce, it can be settled by way of a one-off lump sum payment or monthly payments. The right of maintenance ends if ex-spouse remarries or if either party dies.

Children (Custody, Care and Control and Access)

Generally, the court will give decision as to the custody, care and control and access of the children based on what serves as their best interests and by looking at the welfare of the children. Thus, the main focus will be on the well-being of the children and not the parents. The factors that will be taken into account would include the time, effort and attention given to the children during the marriage.

In a joint petition, there will be terms agreed upon by both parties as to which parent has the custody of the child, which parent has the daily care and control of the child and the access period of the non-custodial parent.

It is usually the case that the mother will be the more suitable candidate for the custody order, especially if the mother is a stay at home wife as she might be providing a better care for the children as compared to the father who have to go for work. However, the father might be able to get the custody order from the court if he is able to prove to the court that the wife has neglected the care for the children or provide reasons that it will be detrimental to the children if the custody is granted to the mother.

If the court grants the custody order to the mother, she cannot stop the ex-husband from seeing the children unless she can show good reasons as to why access should not be granted to the father.

Such orders for custody, care and control and access will stop automatically when the children reach the age of eighteen.

Maintenance to Children

The court has the power to determine who should provide contributions for maintenance of the children. Although usually it is the father who has the primary duty to provide maintenance for his children, there are some circumstances where if the mother is financially capable, the court may also ask the mother to contribute.

The primary goal of providing maintenance to the children is to make sure that their welfare and basic needs are being properly taken care of such as their food, education and clothing. Factors that will be taken into consideration by the court when deciding the amount that should be paid includes financial capability of the parents, the children’s lifestyle and the children’s essential needs.

In a joint petition, there is a term specified for the ex-husband/spouse to provide for the maintenance of children such as their living expenses and educations fees. It may also include the child’s tertiary education fees. The children maintenance order will cease to end upon the child reaching the age of eighteen.

Matrimonial Assets

Generally, matrimonial assets are all the assets acquired only during the period of marriage hence a matrimonial home will usually be in question as to how it should be divided. Matrimonial assets include immovable property, cash in hand, fixed deposit, cars, insurance, unit trusts and shares

A matrimonial home is usually described as the property which is gained during the duration of the marriage even if it is contributed by solely one party. Parties can come to an agreement on the division of matrimonial assets according to their own wishes. In a joint petition, usually parties will negotiate beforehand and agree as to how the matrimonial home should be divided. It can be 50:50 or it can be held in trust under both of their names until their children attained the age of eighteen so it can be transferred to them.

In the case where the ex-wife is a housewife who did not make any monetary contributions to the matrimonial assets, she might still be entitled to get a smaller share of the matrimonial assets as she contributed her time and effort in taking care of the household. Hence, the law is in favor for the party who have contributed more money to the matrimonial assets that they are entitled to receive a greater proportion of share unless agreed otherwise.

As for non-matrimonial property where they are properties acquired before the marriage, the court is unlikely to give any share at all to the other party.

Cost

Unfortunately there is no straightforward answer to this question. The legal costs depend on the length of time it takes to reach agreement both in respect of the divorce and the division of the family finances.

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