SEPARATION, DIVORCE & ANNULMENT
When two people are in a relationship they are usually in it forever. Unfortunately, it isn’t always the case and as you will learn in this unit, there are many things that could potentially be blamed for the breakdown of such relationships. This topic takes you into the world of divorce which is never an easy thing for any couple and if there are children involved (and there usually are); it makes the experience even worse. Some couples split amicably while for others the parting can drag on in what could seem like forever where the accusations and blame is often hurled from one party to another. In many countries, there has been a shift towards ‘no fault’ divorce. A no fault divorce is divorce in which the dissolution of a marriage does not require fault of either party to be shown, or the requirement of any evidentiary proceedings to take place. So either party may request a divorce despite the objections of the other party. No fault divorce systems are where the law provides for only one ground for divorce – this is that the marriage has broken down irretrievably (see example, s30(1) Family Law Act, Fiji).
This does not necessarily mean that both parties to the marriage were equally blameless for the breakdown in the relationship but it does recognise that both may have contributed to that breakdown and that blame and accusation can aggravate what is likely to already be an unhappy and often bitter situation. Accusations and recriminations do not help this and may be particularly damaging for any children of the marriage, who, despite whatever the feelings of their parents, still need to have a mother and father. While marriage remains an important cornerstone for the stability of society and social ordering, the law allows divorce and provides a framework both for that divorce and for the consequences of that change of status especially as regards any children of the marriage and any property interests which have arisen due to the marriage. 1. Ground s for Di v or c e
Grounds for divorce are statutorily provided for throughout the region. They include:
iii. refusal to consummate
v. habitual drunkenness or habitual intoxication
vi. convictions for various criminal acts
vii. failure to financially support the petitioner
viii. failure to comply with a decree for the restitution of conjugal rights ix. being of unsound mine
x. living apart for five years from the respondent with no intention of cohabiting xi. Presumed dead.
LW310 Family law 4.6
In Tuvalu, unless one party to a marriage has wilfully refused to consummate it, or the marriage was induced by fraud, duress or mistake, the sole ground for divorce is that the marriage has broken down completely (Matrimonial Proceedings Act [Cap 21] (Tuvalu) section 9).
Evidence which may be accepted by the court to show that the marriage has broken down includes adultery, desertion, cruelty, being of unsound mind or if, in the circumstances, it would be unreasonable to expect one party to continue in the marriage. Whatever the evidence, however, the court must determine whether or not the marriage has completely broken down.
A more restrictive approach is taken by Nauru where the court must find that the marriage has broken down irretrievably and it may only do so on one of four grounds. These grounds are desertion, separation for two years with consent of both parties or separation for five years and certain behaviour. These grounds need to be proved or parties need to fulfil strict conditions. The conditions relate to:
• living apart,
• attendance at court each month for six months after presentation of the petition,
• consistent and voluntary statements requesting the marriage to be dissolved and
• attempts by the court to promote reconciliation (Matrimonial Causes Act 1973 (Nauru) ss 10 and 12).
Tonga prescribes eight matrimonial offences although, with consent, the...
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