Divorce et Consequences

• Grounds for Divorce


  - Fault-based divorce (Fautes ou injures graves): One spouse commits a serious mistake or misconduct.

  - Separation (Séparation de corps): Spouses have been legally separated for a specific period (typically 3 years).

  - Breakdown of marital life (Rupture de la vie commune): Spouses are no longer living together, and the marriage has irretrievably broken down.

  - Mutual consent (Consentement mutuel): Both spouses agree to divorce (must be married for at least 24 months)
• Divorce par Fautes [Article 230]


  Fault is defined as a serious or repeated breach of the duties and obligations of marriage.
• Premarital Faults (Mungur v Mungur 1993)

  - Premarital faults can be considered grounds for divorce if they constitute a serious breach of the duties and obligations of marriage.

  - Mungur v Mungur [1993 SCJ 124]: the Supreme Court of Mauritius held that a wife's failure to disclose her premarital sexual history to her husband was a serious breach of the duty of fidelity and therefore a ground for divorce.
• Dissimulation of Mental Illness (Ramkishore v Ramkishore 1998)


  - The dissimulation of mental illness can also be considered a ground for divorce.

  - In Ramkishore V Ramkishore, the Supreme Court of Mauritius held that a wife's failure to disclose her mental illness to her husband before the marriage was a ground for divorce.
• Impotence (Sookia v Sookia 1959)


  - Impotence is another ground for divorce.

  - In Sookia V Sookia and Masson v Masson 1999, the Supreme Court of Mauritius held that impotence is a ground for divorce because it prevents the spouses from consummating the marriage.
• Dishonesty (Seebhujun V Ramchurn 1995)


  The trial judge found the respondent guilty of adultery but noted the appellant's contribution to the breakdown of the marriage by ceasing to sleep with the respondent. As a result, the judge granted a provisional decree of divorce with shared fault and awarded custody of the child to the respondent
• Change of Religion (Veeramootoo V Veeramootoo 1991)


  While changing religion alone may not warrant divorce, accompanying changes in behavior that breach marital duties could justify divorce
• Divorce Based on Criminal Conviction [Art. 231]

  A spouse can seek divorce if the other spouse has been convicted of a serious crime and sentenced to at least five years in prison.
• Effect of Reconciliation on Divorce [Art 232]


  - If the spouses reconcile after the events that led to the divorce petition, those events can no longer be used as grounds for divorce.

  - The judge will dismiss the divorce petition.

  - However, a new petition can be filed based on events that occurred or were discovered after the reconciliation. In this case, the earlier events can be mentioned to support the new petition.

  - Temporary resumption of cohabitation does not count as reconciliation if it is due to necessity, an attempt at reconciliation, or the need to care for children.
• Fault of the Spouse Initiating the Divorce [Art. 233]


  - The faults of the spouse who initiates the divorce do not prevent the court from considering the petition.

  - However, these faults may reduce the seriousness of the acts attributed to the other spouse, potentially making them insufficient grounds for divorce.

  - The other spouse can also use these faults to support a counter-petition for divorce.

  - If both petitions are successful, the divorce will be pronounced as a "shared fault" divorce.
• Tort Partagee (Shared Fault) [Art. 234]


  - Allows the judge to grant a divorce based on the shared fault of both spouses, even if no counterclaim has been filed. This means a divorce can be pronounced even if only one spouse requested it, and the other spouse did not countersue for divorce.
• Caselaw for Tort Partagee (Appa Jala v Appa Jala 2012)


  The judge ruled that the marriage had irretrievably broken down, with both parties sharing responsibility. A provisional divorce decree was granted on grounds of shared fault
• Rupture de la Vie Commune [Art. 235 - 237]


  - For a divorce to be granted based on breakdown of marriage, it's not enough to just show physical separation (material element). There must also be an intention to break the marital bond (intentional element)

  - Time Period: The required separation period for a divorce based on breakdown of marriage is one year

  - NOTE: When using this grounds for divorce, the costs of the divorce is on the one who initiated it
• Caselaw for Ruture (Bastide v Bastide 1982)


  The petition for divorce based on "rupture de la vie commune" is set aside due to the petitioner's failure to comply with the requirements of article 236 of the Code Napoléon
• Article 236


  The spouse seeking divorce for "rupture de la vie commune" must bear all the charges and specify in the petition how they will fulfill their obligations towards the spouse and children. The court emphasizes that a petitioner seeking divorce on these grounds is deemed the guilty party and cannot simply state that they do not intend to claim anything from the innocent party.
• Divorce par consentement mutuel [Art. 238(3) - 238 (5)]


  - Spouses can jointly apply for divorce if they agree on the breakdown of the marriage and its consequences

  - · Waiting period: Divorce by Mutual Consent cannot be requested during the first twenty-four months of the marriage.
• Caselaw for Mutual Consent (JONES v SAHEBDJAM 2016)


  Court ruled that:

  - It is possible to change your name after a mutual consent divorce.

  - The name change must be approved by the court.

  - The court will consider the child's best interests and the impact of the name change on the person's daily life.
• Separation de Corp [Art. 269 - 279]


  - Legal separation is a relaxation of the marital bond that ends the obligation of cohabitation.

  - The grounds for legal separation are identical to those for divorce.

  - The consequences of legal separation are also similar to those of divorce.

  - The marriage subsists, except for the obligation of cohabitation.

  - Legal separation can be converted into divorce after a certain period of time.
• Change of Name


  - A woman who divorces her husband may resume her maiden name. However, there are certain exceptions to this rule.

  - A woman may retain her married name if she has a professional or commercial interest in doing so.

  - A woman who is awarded custody of her children may be required to retain her married name in order to avoid confusion for the children.
• Widowhood Period (Délai de Viduité) [Article 228]


  - A woman cannot contract a new marriage until three hundred days have elapsed since the dissolution of her previous marriage.

  - The purpose of the widowhood period is to:

  1. Protect the woman's health by allowing her time to recover after childbirth.

  2. Avoid any confusion regarding the paternity of a child born during the widowhood period.
• The Widowhood Period Ends:

  - Childbirth after the dissolution of the marriage: The woman can remarry immediately after giving birth.

  - Medical certificate confirming no pregnancy: The woman can remarry if she presents a medical certificate stating she is not pregnant and was not pregnant at the time of the marriage dissolution.

  - It's important to note that the widowhood period does not apply to men.
• Family Dwelling (Logement Familiale) [Article 259]


  If the family home belongs solely to one spouse, the judge may grant a lease to the other spouse under certain conditions
• Lease Duration


  - Custody Case: The judge sets the initial lease duration and can renew it until the youngest child reaches adulthood.

  - Divorce Case: The lease is granted for a maximum of nine years but can be extended by the judge.
• Lease to Divorced Spouse Conditions

  1. Custody of Children:

  - If the spouse who doesn't own the home has custody of one or more children.

  2. Divorce:

  - If the divorce was granted due to the fault of the owning spouse.

  - If the divorce was granted due to the breakdown of marital life and the non-owning spouse filed for divorce.
• Lease Termination


  The lease automatically ends if the non-owning spouse:

  - Remarries.

  - Lives in a common-law relationship (notorious concubinage)
• Children After Divorce in Mauritius [Article 260]


  The courts will determine the custody arrangements for the children based on their best interests.
• Article 261(3)


  Custody of children under the age of five will always be attributed to the mother, unless there are exceptional circumstances that could compromise the child's safety or health
• Caselaw for Perte de L'autorité Parentale: Schwab v. Armoogum (2019)


  Considering the best interests of the child, the court decides to entrust custody to the paternal grandmother and partially remove parental authority from both parents