A divorce is surely one of the most damaging and stressful experiences that a couple can ever go through. It is a whole process of painful change and adjustment rather than just a day in court (to settle old scores!). A divorce will definitely affect the parties thereto, besides affecting children born from this marriage.
Prior to 15 May 2011, date on which the Divorce and Judicial Separation (Miscellaneous Provisions) Act, hereinafter the “2011 Amendment” was enacted, article 229 of the Code Civil Mauricien provided that a divorce petition to the Family division of the Supreme Court can only be presented on the grounds of (a) fault (“faute”) of the other spouse or (b) for a breakdown in conjugal life between the spouses, commonly known as rupture de la vie commune. The 2011 Amendment brings in two new grounds on which a divorce petition can be based, namely mutual consent and acceptance of the principle that the marriage has broken down (acceptation du principe de la rupture du marriage). It should be noted that the Code Napoleon provided for divorce by mutual consent until 1884, when the British government of the colony abolished same.
In its December 2008 report on divorce, the Law Reform Commission (LRC) recommended that above two new grounds for divorce and opined that the law on divorce was inadequate and needed to be adapted to the realities of conjugal life in Mauritius whilst achieving the two objectives of divorce law namely: (a) to buttress, rather than undermine, the stability of a marriage, (b) when a marriage has irretrievably broken down, to terminate such conjugal relationship with maximum fairness to the parties and to children from the said marriage. Humiliation, embarrassment, distress and bitterness should be kept to the minimum. As the LRC puts it: “[i]f the marriage is dead, the object of the law should be to afford it a decent burial.”
A fault-based divorce is established when an act or omission on the part of the spouse constitutes a serious or renewed violation of the duties and obligations of marriage so as to render unbearable the continuance of community life. Similarly, if one spouse is condemned to imprisonment for at least five years for a criminal offence, the other spouse can petition for divorce on that ground. Fault has been established in cases of adultery or close and equivocal relationship with another person, or generally a breach of any of the obligations emanating from the marriage, like non-contribution to the “charges du ménage”, “défaut de soin et attention”, “défaut au devoir de secours et assistance” or a “manquement au devoir de loyauté des époux”, to name but a few. The fault must be such as to render “intolérable le maintien de la vie commune”, there being no prospect for reconciliation and resumption of conjugal life. A reconciliation between the spouses which occurs after the alleged facts prevent these facts from being invoked as a ground for divorce.
Rupture de la vie commune
Divorce on the ground of irretrievable breakdown in conjugal life can be asked for if the spouses have lived separately for a period of three years. The Supreme Court has opined that such a separation should consist of an overt act accompanied by a clear intention of either party to put an end to conjugal life, which would leave the other spouse in no doubt whatsoever that a complete breakdown of conjugal life has occurred. It has been decided by the Supreme Court that there is no need for the spouses to live in separate houses to the extent that the spouses have cut off all links (physical, economic and social) between themselves.
Acceptation du principe de la rupture du mariage
For divorce on the ground of acceptance of the principle that the marriage has broken down (acceptation du principe de la rupture du marriage), a petition can only be presented after 24 months from the date of the marriage. Such a petition can be presented by either spouses or both of them when they accept the principle of the breakdown of the marriage without consideration of the facts from which it originated. Where the judge believes that each spouse has given freely his or her consent, the judge shall decree divorce and adjudicate on its consequences.
Divorce by mutual consent
A divorce by mutual consent is recognised when parties to a marriage agree to both the divorce and the consequences thereof. In such a case, both spouses make a joint petition to the Supreme Court of their intention to divorce and an agreement as to the consequences of their divorce. Such a petition can only be presented when a period of 24 months have elapsed since the celebration of the marriage. The judge will approve such an agreement and make a decree of divorce when he is satisfied that the real intention of both spouses is to part ways and that there are no possibilities of reconciliation between the spouses. A divorce by mutual consent spares the spouses the embarrassment and humiliation that a fault-based divorce entails. The latter usually involves the unnecessary dredging up of incidents which would be best forgotten, an unnecessary emphasis on blame and recrimination and an unnecessary increase in bitterness and hostility between the spouses.
The requirement to present a petition after 24 months from the date of marriage in cases of divorce by mutual consent or divorce on the ground of acceptance of the principle that the marriage has broken down ensured that divorce laws do not undermine the institution of marriage. Furthermore, the decree of divorce would only be pronounced after a period of three months had elapsed since the petition had been presented to the Court. This gives time to the parties to further reflect on the implications of their choices and may decide to resume conjugal life.