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MATRIMONIAL CAUSES CHAPTER 125
MATRIMONIAL CAUSES
ARRANGEMENT OF SECTIONS
SECTION
- Short title.
- Interpretation.
Judicial Separation
- Decree and effect of judicial separation.
- Proof of petition for judicial separation.
- Property of a wife deserted by her husband protected.
- Additional power of court in case of criminal assault upon wife.
- Proceedings before magistrate or court.
- Reversal of decree of judicial separation.
- Wife's alimony may be paid to a trustee.
- A wife to be considered a femme sole after judicial separation.
- When a wife may be considered a femme sole for contracts, wrongs, etc.
- Further effect of a decree for judicial separation.
- A wife's earnings protected or any corporation who may deal with her.
- Date of protection.
- Protection to persons who make payment to wife.
Divorce
- Grounds on which a husband or wife may petition for dissolution of marriage and duty of court in respect of petition.
- Court may order respondent or co-respondent to be dismissed from suit.
- Grounds for dismissing petition.
- Power of court on proof of petition.
Void and Voidable Marriages
- Petition for nullity
- Void marriage.
- Voidable marriage.
- Decree of nullity.
- Effect of decree on voidable marriage.
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Financial Provisions
- Financial provision and property adjustment orders.
- Maintenance pending suit.
- Financial provision orders in connection with matrimonial proceedings.
- Property adjustment orders in connection with matrimonial proceedings.
- Matters to which court is to have regard in deciding how to exercise its powers under sections 25, 27 and 28.
- Commencement of proceedings for ancillary relief.
- Neglect by party to marriage to maintain other party or child of the family.
- Duration of continuing financial provision orders in favour of party to marriage, and effect of remarriage.
- Duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour.
- Attachment of earnings or pension to satisfy financial provision order.
- Variation, discharge, etc., of certain orders for financial relief.
- Payment of certain arrears unenforceable without the leave of the court.
- Orders for repayment in certain cases of sums paid under certain orders.
- Rights of mortgagee not affected.
- Court may make orders for occupation of matrimonial home.
- Sale of home or payment may be directed by Court.
- Court may vest in parties in common.
- Court may vest tenancy of dwelling house in petitioner or respondent.
- Landlord to have right to be heard.
- Order in respect of furniture.
- Exclusion of common law rights.
- Interpretation.
- Application of provisions to nullity and judicial separation.
Damages, Procedures, Maintenance Agreements, etc.
- Court may give relief to respondent without the filing of a petition.
- Abolition of right to claim damages for adultery
- Rules of court.
- Validity of maintenance agreements.
- Alteration of agreements by court during lives of parties.
- Alteration of agreements by court after death of one party.
- Avoidance of transactions intended to prevent or reduce financial relief.
- Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage.
- Payments etc., under order made in favour of person suffering from mental disorder.
- Facts arising in proceedings.
- When a question is ordered to be tried by a jury, they may be summoned as in the court.
- Question to be tried to be reduced into writing.
- Issues may be tried in court.
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CHAPTER 125
MATRIMONIAL CAUSES
An Act relating to divorce and matrimonial causes within The Bahamas.
[Commencement 11th March, 1879]
1. This Act may be cited as the Matrimonial Causes Act. 2. In this Act, unless the context otherwise requires — “adultery” includes any voluntary act of an intimate sexual nature, other than that regarded as an act of mere familiarity, between one party to a marriage with another party of the opposite sex who is not the other spouse and which act is inconsistent with that sexual fidelity that is presumed in the interest of public policy to exist between parties to a marriage, or any conduct between a party to a marriage with another person as afore-mentioned whereby a strong presumption arises that such sexual act occurred between them; “court” means the Supreme Court. “cruelty” includes voluntary conduct reprehensible in nature or which is a departure from the normal standards of conjugal kindness on the part of one party to a marriage thereby occasioning injury to the health of the other spouse or a reasonable apprehension of it on the part of that other spouse and being conduct which, after taking due account of all the circumstances of the case, would be considered to be so grave and weighty a nature that should such other spouse be called upon to continue to endure it, would be detrimental to his or her health; “desertion” includes behaviour without cause or excuse on the part of one party to a marriage towards the other spouse whereby it can reason- ably be concluded that that party intended through such behaviour to bring the matrimonial consortium to an end.
6 of 1879 18 of 1954 1 of 1957 47 of 1967 7 of 1962 43 of 1964 46 of 1964 9 of 1983 17 of 1988 9 of 1991
Short title.
Interpretation. 9 of 1983, s. 2.
9 of 1983 s. 2.
9 of 1983, s. 2.
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5. A wife deserted by her husband may, at any time after such desertion, apply to the court, or to a magistrate, for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of after such desertion, against her husband or his creditors, or any person claiming under him, and the court or magistrate, if satisfied of the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry, or property, may make and give to the wife an order protecting her earnings and property acquired since the commencement of such desertion, from her husband and all creditors and persons claiming under him, and such earnings and property shall belong to the wife as if she were a femme sole :
Provided that every such order, when made by a magistrate, shall, within ten days after the making thereof, if made in New Providence, and within thirty days if made elsewhere, be entered with the Registrar of the court, and that it shall be lawful for the husband and any creditor or other person claiming under him, to apply to the court or to the magistrate by whom such order was made for the discharge thereof;
Provided also that, if the husband shall seize or continue to hold any property of the wife, after notice of any such order, he shall be liable at the suit of the wife (which she is hereby empowered to bring) to restore the specific property, and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid:
Provided further that if any such order of protection be made, the wife shall, during the continuance thereof, be and be deemed to have been during such desertion of her in the like position in all respects with regard to property and contracts, and suing and being sued as she would be under this Act if she obtained a decree of judicial separation ground why the petition should not be granted, may subject to subsection (2) grant a decree of judicial separation.
6. (1) If a husband shall be convicted summarily or otherwise of an aggravated assault upon his wife, the court or magistrate before whom he shall be so convicted may, if satisfied that the future safety of the wife is in peril, and
Property of a wife deserted by her husband protected.
Additional power of court in case of criminal assault upon wife. 9 of 1983, s. 5.
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with the consent of the wife order that the wife shall be no longer bound to cohabit with her husband. (2) An order under subsection (1) shall have the force and effect in all respects of a judicial separation on the ground of cruelty and such order may further make provision in respect to (a) the maintenance of the wife; (b) the maintenance and custody of any children of the family, as if such order were an order being made by the court or the magistrate in or ancillary to proceedings for judicial separation under this Act or proceedings pursuant to section 3 of the Matrimonial Causes (Summary Jurisdic- tion) Act.
7. The proceedings before magistrates under this Act shall be governed by the provisions of the Magistrates Act, as well in enforcing orders made as in investigating complaints preferred, and the proceedings before the Supreme Court shall be regulated by such rules as the Rules Committee under section 75 of the Supreme Court Act may from time to time make and enact for the purpose, and in all such proceedings the parties, husband and wife, shall be competent witnesses for both parties. 8. Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may at any time thereafter present a petition to the court, praying for a reversal of such decree on the ground that it was obtained in his or her absence, and that there was reasonable ground for the alleged desertion, where desertion was the ground of such decree, and the court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly, but the reversal thereof shall not prejudice or affect the rights or remedies which any other person would have had in case such reversal had not been decreed in respect of any debts, contracts or acts of the wife incurred, entered into or done between the time of the sentence of separation and of the reversal thereof. 9. In all cases in which the court shall make any decree or order for a sum to be paid under section 26 or 27, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf, to be approved of by the
Ch. 126.
Proceedings before magistrate or court. 46 of 1964, Sch.. Ch. 54.
Ch. 53.
Reversal of decree of judicial separation
Wife's alimony may be paid to a trustee. 9 of 1983, s. 6.
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13. In every case in which a wife shall under this Act have obtained an order to protect her earnings or property, or a decree for judicial separation, such order or decree shall, until reversed or discharged, so far as necessary for the protection of any person or corporation who shall deal with the wife, be deemed valid and effectual, and no discharge, variation or reversal of such order or decree shall prejudice or affect any rights or remedies which any person shall have had, in case the same had not been so reversed, varied or discharged in respect to any debts, contracts or acts of the wife incurred, entered into or done between the times of the making such order or decree and of the discharge, variation or reversal thereof, and property of, or to which the wife is possessed or entitled, for an estate in remainder or reversion at the date of the desertion or decree (as the case may be), shall be deemed to be included in the protection given by the order or decree. 14. Every order which shall be obtained by a wife under this Act, for the protection of her earnings or property, shall state the time at which the desertion in consequence whereof the order is made commenced. And the order shall, as regards all persons dealing with such wife in reliance thereon, be conclusive as to the time when such desertion commenced. 15. All persons and corporations who shall in reliance on any such order or decree as aforesaid, make any payment to, or permit any transfer or act to be made or done by the wife who has obtained the same, shall, notwithstanding such order or decree may then have been discharged, reversed or varied, or the separation of the wife from her husband may have ceased, or at some time since the making of the order or decree been discontinued, be protected and indemnified in the same way in all respects as if at the time of such payment, transfer or other act such order or decree were valid and still subsisting without variation, in full force and effect, and the separation of the wife from her husband had not ceased or been discontinued, unless at the time of such payment, transfer or other act, such persons or corporations had notice of the discharge, reversal or variation of such order or decree, or of the cessation or discontinuance of such separation.
A wife's earnings protected or any corporation who may deal with her.
Date of protection.
Protection to persons who make payment to wife.
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Divorce
16. (1) A petition for divorce may be presented to the court either by the husband or the wife on any of the following grounds that the respondent —
(a) has since the celebration of the marriage committed adultery; or (b) has since the celebration of the marriage treated the petitioner with cruelty; or (c) has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (d) has lived separate and apart from the petitioner for a continuous period of at least five years immediately preceding the presentation of the petition; or (e) has, since the celebration of the marriage been guilty of a homosexual act, sodomy or has had sexual relations with an animal: Provided that a wife may also petition on the ground that her husband has since such celebration been guilty of rape.
(2) On a petition for divorce presented by the husband on the ground of adultery or in any other pleading praying for divorce on that ground, the husband shall make the alleged adulterer a co-respondent unless excused by the court on special grounds from doing so.
(3) On a petition for divorce presented by the wife on the ground of adultery the court may, if it thinks fit, direct that the alleged adulteress be made a respondent.
(4) On a petition for divorce it shall be the duty of the court —
(a) to inquire, so far as it reasonably can, into the facts alleged and whether there has been any connivance or condonation on the part of the petitioner and whether any collusion exists between the parties; and (b) to inquire into any counter charges made against the petitioner. (5) For the purposes of subsection (1)(c) the court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing
Grounds on which a husband or wife may petition for dissolution of marriage and duty of court in respect of petition. 9 of 1983, s. 7
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(11) If at any stage of proceedings for divorce it appears to the court that there is a reasonable probability of reconciliation between the parties to the marriage, the court may, without prejudice to any other power, adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation.
17. In all cases in which, on the petition of a husband for a divorce, the alleged adulterer is made a co- respondent, or in which, on the petition of a wife, the person with whom the husband is alleged to have committed adultery is made a respondent, it shall be lawful for the court, after the close of the evidence on the part of the petitioner, to direct such co-respondent or respondent to be dismissed from the suit, if it shall think there is not sufficient evidence against him or her. 18. The court may dismiss a petition for divorce if: (a) it is not satisfied on the evidence that the case for the petitioner has been proved; or (b) it finds that the petition is presented or prosecuted in collusion with the respondent or either of the respondents; or (c) it finds that the petitioner has during the marriage been guilty of adultery; or (d) in its opinion the petitioner has been guilty — (i) of unreasonable delay in presenting or prosecuting the petition; or (ii) of cruelty towards the other party to the marriage; or (iii) where the ground of the petition is adultery or cruelty, of having without reasonable excuse either deserted or wilfully separated himself or herself from the other party before the adultery or cruelty; or (iv) where the ground of the petition is adultery or desertion, of such wilful neglect or misconduct as has conduced to the adultery or desertion. 19. (1) If the court is satisfied on the evidence that the case for the petitioner has been proved and —
(a) where the ground of the petition is adultery, that the petitioner has not in any manner accessory to or connived at or condoned the adultery;
Court may order respondent or co- respondent to be dismissed from suit.
Grounds for dismissing petition. 9 of 1983, s. 8; 17 of 1988, s. 2 and Sch.
Power of court on proof of petition. 9 of 1983. s. 9.
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(b) where the ground of the petition is cruelty that the petitioner, has not in any manner condoned the cruelty, the court shall, subject to section 18 grant a decree declaring the marriage to be dissolved; and if the court is not satisfied with respect to any of the matters aforesaid; it shall dismiss the petition; (2) The respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage. (3) Where the grant of a decree is opposed by virtue of subsection (2), then — (a) if the court finds that the petitioner is entitled to rely in support of his petition on the fact of five years' separation and makes no such finding as to any other fact mentioned in section 16(1), and (b) if apart from this section the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage it shall dismiss the petition. (4) For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved.
Void and Voidable Marriages
20. A husband or wife may present a petition to the court praying that his or her marriage may be declared null and void on any of the grounds mentioned in section 21 or
21. (1) A marriage shall be void on any of the following grounds:
Petition for nullity 9 of 1983, s. 10.
Void marriage. 9 of 1983, s. 10.
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(a) if the court is satisfied on the evidence, that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so, and that it would be unjust to the respondent to grant the decree; (b) without prejudice to paragraph (a), on any of the grounds mentioned in paragraphs (c), (d), (e) or (f) of section 22, unless the proceedings are instituted within one year from the date of the marriage; (c) without prejudice to paragraphs (a) and (b) on any of the grounds mentioned in paragraphs (e) or (f) of section 22, unless the court is satisfied that the petitioner was at the date of the marriage ignorant of the facts alleged; or (d) if the court is satisfied that the petition is presented by the petitioner in collusion with the respondent.
24. (1) A decree of nullity granted after the 31st July, 1971, in respect of a voidable marriage, shall operate to annul the marriage only as respects any time after the decree has been made absolute and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time. (2) Where a decree of nullity was granted on or before 31st July, 1971, in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if by the decree the marriage had been dissolved and not annulled, shall be deemed to be the legitimate child of the parties. 25. (1) The financial provision orders for the purposes of this Act are the orders for periodical or lump sum provision available (subject to the provisions of this Act) under section 27 for the purpose of adjusting the financial position of the parties to a marriage and any children of the family in connection with proceedings for divorce, nullity of marriage or judicial separation and under section 31(6) on proof of neglect by one party to a marriage to provide, or to make a proper contribution towards, reasonable maintenance for the other or a child of the family, that is to say —
Effect of decree on voidable marriage. 9 of 1983, s. 10.
Financial provision and property adjustment orders. 9 of 1983, s. 11.
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(a) any order for periodical payments in favour of a party to a marriage under section 27(1)(a) or 31(6)(a) or in favour of a child of the family under section 27(1)(d), (2) or (4) or 31(6)(d); (b) any order for secured periodical payments in favour of a party to a marriage under section 27(1)(b) or 31(6)(b) or in favour of a child of the family under section 27(1)(e), (2) or (4) or 31(6)(e); and (c) any order for lump sum provision in favour of a party to a marriage under section 27(1)(c) or 31(6)(c) or in favour of a child of the family under section 27(1)(f), (2) or (4) or 31(6)(f);
and references in this Act to periodical payments orders, secured periodical payments orders, and orders for the payment of a lump sum are references to all or some of the financial provision orders requiring the sort of financial provision in question according as the context of each reference may require.
(2) The property adjustment orders for the purposes of this Act are the orders dealing with property rights available (subject to the provisions of this Act) under section 28 for the purpose of adjusting the financial position of the parties to a marriage and any children of the family on or after the grant of a decree of divorce, nullity of marriage or judicial separation, that is to say —
(a) any order under subsection (1)(a) of that section for a transfer of property; (b) any order under subsection (1)(b) of that section for a settlement of property; and (c) any order under subsection (1)(c) or (d) of that section for a variation of settlement. (3) Where the court makes under section 27 or 28 a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale in which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.
(4) Any order made under subsection (3) may contain such consequential or supplementary provisions as the
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of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.
27. (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say —
(a) an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order; (b) an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified; (c) an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified; (d) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified; (e) an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; (f) an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified;
subject, however, in the case of an order under paragraph (d), (e) or (f) to the restrictions imposed by section 33(1) and (3) on the making of financial provision order in favour of children who have attained the age of eighteen.
(2) The court may also, subject to those restrictions make any one or more of the orders mentioned in subsection (1)(d), (e) and (f) —
(a) in any proceedings for divorce, nullity of marriage or judicial separation, before granting a decree; and
Financial provision orders in connection with matrimonial proceedings. 9 of 1983, s. 11.
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(b) where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal. (3) Without prejudice to the generality of subsection (1)(c) or (f) — (a) an order under this section that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour; (b) an order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and (c) an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court. (4) The power of the court under subsection (1) or (2)(a) to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under subsection (2)(b) it may from time to time, subject to the restrictions mentioned in subsection (1) make a further order in his favour of any of the kinds mentioned in subsection (1)(d), (e) or (f). (5) Without prejudice to the power to give a direction under section 71 for the settlement of an instrument by counsel, where an order is made under subsection (1)(a), (b) or (c) on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.
