[CH.125 1 CHAPTER 125 SECTION ARRANGEMENT OF SECTIONS 1. Short title. 2. Interpretation. Judicial Separation 3. Decree and effect of judicial separation. 4. Proof of petition for judicial separation. 5. Property of a wife deserted by her husband protected. 6. Additional power of court in case of criminal assault upon wife. 7. Proceedings before magistrate or court. 8. Reversal of decree of judicial separation. 9. Wife's alimony may be paid to a trustee. 10. A wife to be considered a femme sole after judicial separation. 11. When a wife may be considered a femme sole for contracts, wrongs, etc. 12. Further effect of a decree for judicial separation. 13. A wife's earnings protected or any corporation who may deal with her. 14. Date of protection. 15. Protection to persons who make payment to wife. Divorce 16. Grounds on which a husband or wife may petition for dissolution of marriage and duty of court in respect of petition. 17. Court may order respondent or co-respondent to be dismissed from suit. 18. Grounds for dismissing petition. 19. Power of court on proof of petition. 20. Petition for nullity 21. Void marriage. 22. Voidable marriage. 23. Decree of nullity. 24. Effect of decree on voidable marriage. Void and Voidable Marriages [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 2] Financial Provisions 25. Financial provision and property adjustment orders. 26. Maintenance pending suit. 27. Financial provision orders in connection with matrimonial proceedings. 28. Property adjustment orders in connection with matrimonial proceedings. 29. Matters to which court is to have regard in deciding how to exercise its powers under sections 25, 27 and 28. 30. Commencement of proceedings for ancillary relief. 31. Neglect by party to marriage to maintain other party or child of the family. 32. Duration of continuing financial provision orders in favour of party to marriage, and effect of remarriage. 33. Duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour. 34. Attachment of earnings or pension to satisfy financial provision order. 35. Variation, discharge, etc., of certain orders for financial relief. 36. Payment of certain arrears unenforceable without the leave of the court. 37. Orders for repayment in certain cases of sums paid under certain orders. 38. Rights of mortgagee not affected. 39. Court may make orders for occupation of matrimonial home. 40. Sale of home or payment may be directed by Court. 41. Court may vest in parties in common. 42. Court may vest tenancy of dwelling house in petitioner or respondent. 43. Landlord to have right to be heard. 44. Order in respect of furniture. 45. Exclusion of common law rights. 46. Interpretation. 47. Application of provisions to nullity and judicial separation. Damages, Procedures, Maintenance Agreements, etc. 48. Court may give relief to respondent without the filing of a petition. 49. Abolition of right to claim damages for adultery 50. Rules of court. 51. Validity of maintenance agreements. 52. Alteration of agreements by court during lives of parties. 53. Alteration of agreements by court after death of one party. 54. Avoidance of transactions intended to prevent or reduce financial relief. 55. Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage. 56. Payments etc., under order made in favour of person suffering from mental disorder. 57. Facts arising in proceedings. 58. When a question is ordered to be tried by a jury, they may be summoned as in the court. 59. Question to be tried to be reduced into writing. 60. Issues may be tried in court. STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 3 61. Every decree for divorce or for nullity of marriage to be a decree nisi. Liberty to show why decree should not be made absolute. Attorney-General may intervene. 62. Costs of persons intervening. 63. Court may send papers to Attorney-General. 64. When divorced persons may marry again. 65. Criminal conversation. 66. Power to appoint commissioners on Out Islands to administer oaths. 67. Jurisdiction of Supreme Court. Jurisdiction in Matrimonial Proceedings Supplemental 68. Recognition of overseas decrees. 69. Marriage governed by foreign law or celebrated abroad. 70. Presumption of death and dissolution of marriage. 71. Direction for settlement of instrument for securing payments or effecting property adjustment. 72. Abolition of wife s dependent domicile. Protection, Custody, etc., of Children 73. Restrictions on decrees for dissolution, annulment or separation affecting children. 74. Orders for custody and education of children affected by matrimonial issues. 75. Power to provide for supervision of children. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 4] STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 5 CHAPTER 125 An Act relating to divorce and matrimonial causes within The Bahamas. Act. [Commencement 11th March, 1879] 1. This Act may be cited as the Matrimonial Causes 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 reasonably 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. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 6] Decree and effect of judicial separation. 9 of 1983, s. 3. Ch. 126. Proof of petition for judicial separation. 9 of 1983, s. 4. Judicial Separation 3. (1) A petition for judicial separation may be presented to the court by either party to a marriage on any of the grounds which a petition for divorce may be presented under section 16. (2) The grant of a decree of judicial separation does not have the effect of dissolving a marriage though it shall no longer be obligatory for the petitioner to cohabit with the respondent as long as the decree is in effect. (3) A person shall not be prevented from presenting a petition for divorce, or the court from granting a decree of divorce, by reason only that the petitioner or respondent has at any time, on the same facts or substantially the same facts as those proved in support of the petition, been granted a decree of judicial separation or an order under section 4(1) of the Matrimonial Causes (Summary Jurisdiction) Act. (4) On a petition for divorce in such a case as is mentioned in subsection (3) the court may treat the decree of judicial separation or order as sufficient proof of any adultery, desertion or other fact by reference to which it was granted, but shall not grant a decree of divorce without receiving evidence from the petitioner. (5) Where a petition for divorce in such a case follows a decree of judicial separation or an order containing a provision exempting one party to the marriage from the obligation to cohabit with the other, for the purposes of that petition a period of desertion immediately preceding the institution of the proceedings for the decree or order shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since it was granted, be deemed immediately to precede the presentation of the petition. 4. (1) On the hearing of a petition for judicial separation the court, on being satisfied of the truth of the allegations therein contained and that there is no legal ground why the petition should not be granted, may subject to subsection (2) grant a decree of judicial separation. (2) Sections 16(2), (3), 17 and 18 shall, as they apply to divorce, apply mutatis mutandis to a petition for judicial separation. STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 7 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. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 8] 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. 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 Jurisdiction) 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 STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 9 court, and may impose any term or restriction which to the court may seem expedient, and may from time to time appoint a new trustee, if for any reason it shall appear to the court expedient so to do. 10. In every case of a judicial separation the wife shall from the date of the sentence, and whilst the separation shall continue, be considered as a femme sole with respect to property of every description which she may acquire or which may come to, or devolve upon her, and such property may be disposed of by her in all respects as a femme sole, and on her decease the same shall, in ease she shall die intestate, go as the same would have gone if her husband had been dead: Provided that if any such wife should again cohabit with her husband, all such property as she may be entitled to, when such cohabitation shall take place, shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate. 11. In every case of a judicial separation, the wife shall, while so separated, be considered as a femme sole, for the purposes of contract and wrongs and injuries, and suing and being sued in any civil proceeding, and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant: Provided that where upon any such judicial separation alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use: Provided also that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband. 12. The provisions of this Act respecting the property of a wife who has obtained a decree for judicial separation or an order for protection shall be deemed to extend to property to which such wife has become, or shall become, entitled, as executrix, administratrix or trustee since the sentence of separation, or the commencement of the desertion (as the case may be); and the death of the testator, or intestate, shall be deemed to be the time when such wife became entitled as executrix or administratrix. 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. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 10] A wife's earnings protected or any corporation who may deal with her. Date of protection. Protection to persons who make payment to wife. 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. STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 11 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 [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 12] the necessary intention if the evidence before the court is such that, had that party not been so incapable, the court would have inferred that his desertion continued at that time. (6) In considering for the purposes of subsection (1) whether the period for which the respondent has deserted the petitioner or has lived separate and apart from the petitioner has been continuous, no account shall be taken of any one period (not exceeding three months) or of any two or more periods (not exceeding three months in all) during which the parties resumed cohabitation but no period during which the parties cohabited shall count as part of the period of desertion or of the period for which they lived separate and apart, as the case may be. (7) Subject to subsection (8) no petition for divorce other than that based on facts existing, and constituting a ground for divorce, prior to the coming into operation of this subsection shall be presented to the court before the expiration of the period of two years from the date of marriage (hereinafter in this section referred to as the specified period ). (8) The court may, on application made to it, allow the presentation of a petition for divorce within the specified period on it being satisfied that there is no reasonable probability of a reconciliation between the parties during the specified period. (9) If it appears to the court, at the hearing of a petition for divorce presented in pursuance of leave granted under subsection (8) that the leave was obtained by the petitioner by any misrepresentation the court may (a) dismiss the petition, without prejudice to any petition which may be brought after the expiration of the specified period upon the same facts, or substantially the same facts, as those proved in support of the dismissed petition; or (b) if it grants a decree, direct that no application to make the decree absolute shall be made during the specified period. (10) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which occurred before the expiration of the specified period. STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 13 (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 corespondent, 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 corespondent 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. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 14] (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. Petition for nullity 9 of 1983, s. 10. Void marriage. 9 of 1983, s. 10. 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 22. 21. (1) A marriage shall be void on any of the following grounds: STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 15 (a) that it is not a valid marriage in accordance with the provisions of the Marriage Act; (b) that at the time of the marriage, either party was already lawfully married; (c) that the parties are not respectively male and female; or (d) that in the case of a polygamous marriage entered into outside The Bahamas, either party was domiciled in The Bahamas. (2) For the purposes of paragraph (d) of subsection (1), a marriage may be polygamous although at its inception neither party has any spouse additional to the other. 22. A marriage celebrated after the 31st July, 1971, shall be voidable on any of the following grounds: (a) that the marriage has not been consummated owing to the incapacity of either party to consummate it; (b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; (c) that either party to the marriage did not validly consent to it whether in consequence of duress, mistake, unsoundness of mind or otherwise; (d) that at the time of the marriage either party to the marriage though capable of giving valid consent, was suffering from a mental disorder within the meaning of the Mental Health Act of such a kind or to such an extent as to be unfitted for marriage; (e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form; (f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner. 23. If the court is satisfied on the evidence of any such fact as is mentioned in section 22, it shall, subject to the provisions of this section, grant a decree annulling the marriage: Provided that the court shall not grant such a decree Ch. 120. Voidable marriage. 9 of 1983, s. 10. Ch. 230. Decree of nullity. 9 of 1983, s. 10. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 16] Effect of decree on voidable marriage. 9 of 1983, s. 10. Financial provision and property adjustment orders. 9 of 1983, s. 11. (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 STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 17 (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 [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 18] Maintenance pending suit. 9 of 1983, s. 11. court thinks fit and, without prejudice to the generality of the foregoing provision, may include (a) provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and (b) provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order. (5) Where an order is made under subsection (3) on or after the grant of a decree of divorce or nullity of marriage, the order shall not take effect unless the decree has been made absolute. (6) Where an order is made under subsection (3) the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified. (7) Where an order under subsection (3) contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a party to the marriage, the order shall cease to have effect on the death or re-marriage of that person. (8) For the purposes of this and the ensuing sections of this Act (a) child, in relation to one or both of the parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties; (b) child of the family, in relation to the parties to a marriage, means (a) a child of both of those parties; and (b) any other child of either party; custody, in relation to a child, includes access to the child; (d) education includes training. 26. On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 19 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. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 20] (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. STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 21 28. (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 a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion; (b) an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them; (c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or postnuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage; (d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement; subject, however, in the case of an order under paragraph (a) to the restrictions imposed by section 33(1) and (3) on the making of orders for a transfer of property in favour of children who have attained the age of eighteen. (2) The court may make an order under subsection (1)(c) notwithstanding that there are no children of the family. (3) Without prejudice to the power to give direction under section 71 for the settlement of an instrument by counsel, where an order is made under this section 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. Property adjustment orders in connection with matrimonial proceedings. 9 of 1983, s. 11. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 22] Matters to which court is to have regard in deciding how to exercise its powers under sections 25, 27 and 28. 9 of 1983, s. 11. 29. (1) It shall be the duty of the court in deciding whether to exercise its powers under section 25(3) or 27(1)(a), (b) or (c) or 28 in relation to a party to a marriage and, if so, in what manner, to have regard to all the circumstances of the case including the following matters that is to say (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contribution made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; (g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring; and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. (2) Without prejudice to subsection (3) it shall be the duty of the court in deciding whether to exercise its powers under section 27(1)(d), (e) or (f), (2) or (4) or 28 in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that it to say (a) the financial needs of the child; (b) the income, earning capacity (if any), property and other financial resources of the child; STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 23 (c) any physical or mental disability of the child; (d) the standard of living enjoyed by the family before the breakdown of the marriage; (e) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained; and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1) just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him. (3) It shall be the duty of the court in deciding whether to exercise its powers under section 27(1)(d), (e) or (f), (2) or (4) or 28 against a party to a marriage in favour of a child of the family who is not the child of that party and, if so, in what manner, to have regard (among the circumstances of the case) (a) to whether that party had assumed any responsibility for the child's maintenance and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility; (b) to whether in assuming and discharging such responsibility that party did so knowing that the child was no his or her own; (c) to the liability of any other person to maintain the child. (4) Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not a party to the marriage also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under section 25(3) in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under this section. [Original Service 2001] STATUTE LAW OF THE BAHAMAS
CH.125 24] Commencement of proceedings for ancillary relief. 9 of 1983, s. 11. Neglect by party to marriage to maintain other party or child of the family. 9 of 1983, s. 11. (5) Without prejudice to subsection (1) where the court grants a divorce on the basis of the ground specified in section 16(1)(d) the court, in exercising the powers referred to in subsection (1), shall have particular regard to the conduct of the petitioner where the evidence discloses that but for the misconduct of the petitioner the parties would not have lived separate and apart. 30. (1) Where a petition for divorce, nullity of marriage or judicial separation has been presented, then, subject to subsection (2) proceedings for maintenance pending suit under section 26, for a financial provision order under section 27, or for a property adjustment order may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition. (2) Rules of court may provide, in such cases as may be prescribed by the rules (a) that applications for any such relief as is mentioned in subsection (1) shall be made in the petition or answer; and (b) that applications for any such relief which are not so made, or are not made until after the expiration of such period following the presentation of the petition or filing of the answer as may be so prescribed, shall be made only with the leave of the court. 31. (1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) (a) being the husband, has wilfully neglected (i) to provide reasonable maintenance for the applicant, or (ii) to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family to whom this section applies; (b) being the wife, has wilfully neglected to provide, or to make a proper contribution towards, reasonable maintenance (i) for the applicant in a case where, by reason of the impairment of the applicant's earning capacity through age, illness or disability of STATUTE LAW OF THE BAHAMAS [Original Service 2001]
[CH.125 25 mind or body, and having regard to any resources of the applicant and the respondent respectively which are, or should properly be made, available for the purpose, it is reasonable in all the circumstances to expect the respondent so to provide or contribute, or (ii) for any child of the family to whom this section applies. (2) The court shall not entertain an application under this section unless (a) the applicant or the respondent is domiciled in The Bahamas on the date of the application; or (b) the applicant has been habitually resident there throughout the period of one year ending with that date; or (c) the respondent is resident there on that date. (3) This section applies to any child of the family for whose maintenance it is reasonable in all the circumstances to expect the respondent to provide or towards whose maintenance it is reasonable in all the circumstances to expect the respondent to make a proper contribution. (4) Where the child of the family to whom the application under this section relates is not the child of the respondent, then, in deciding (a) whether the respondent had been guilty of wilful neglect to provide, or to make a proper contribution towards, reasonable maintenance for the child, and (b) what order, if any, to make under this section in favour of the child the court shall have regard to the matters mentioned in section 29(3). (5) Where on an application under this section it appears to the court that the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the court may make an interim order for maintenance, that is to say, an order requiring the respondent to make to the applicant until the determination of the application such periodical payments as the court thinks reasonable. [Original Service 2001] STATUTE LAW OF THE BAHAMAS