West­min James

A di­vorce is an or­der of the court up­on a pe­ti­tion by a par­ty to the mar­riage, called the pe­ti­tion­er, de­clar­ing a mar­riage be­tween the pe­ti­tion­er and his or her spouse, called the re­spon­dent, to be at an end.

Ju­ris­dic­tion of the court

No pe­ti­tion for di­vorce could be pre­sent­ed to the court be­fore the ex­pi­ra­tion of the pe­ri­od of one year from the date of the mar­riage un­less good rea­son is shown. Spous­es do not have to be mar­ried in T&T to ob­tain a di­vorce in T&T. If a cou­ple is legal­ly mar­ried, the on­ly re­quire­ment to ob­tain a di­vorce is that at least one of the spous­es must have been ha­bit­u­al­ly res­i­dent in T&T or domi­ciled in T&T when the pro­ceed­ings be­gun.

Grounds for a di­vorce in T&T

In Trinidad and To­ba­go, the sole ground on which a pe­ti­tion for di­vorce may be pre­sent­ed to the court by ei­ther par­ty to a mar­riage is that the mar­riage has bro­ken down ir­re­triev­ably. A mar­riage is con­sid­ered to have bro­ken down ir­re­triev­ably by virtue of the Mat­ri­mo­ni­al Pro­ceed­ings and Prop­er­ty Act Chap 49:51 if the pe­ti­tion­er proves one of the fol­low­ing five facts:

1. Adul­tery

If a spouse has com­mit­ted adul­tery and the oth­er spouse finds it in­tol­er­a­ble to live with them a mar­riage would be con­sid­ered to have been ir­re­triev­ably bro­ken down. How­ev­er, this rea­son is usu­al­ly con­test­ed and can be very dif­fi­cult to prove in court. If the hus­band is pe­ti­tion­ing for the di­vorce on this ba­sis, he must join the adul­ter­er as a co-re­spon­dent un­less ex­cused by the court. If the wife is pe­ti­tion­ing for di­vorce on this ba­sis, the adul­ter­ess can on­ly be joined if the court di­rects. A spouse is not en­ti­tled to re­ly on this fact if af­ter it was found out that the spouse com­mit­ted adul­tery the par­ties con­tin­ued to live to­geth­er in the same house­hold for a pe­ri­od or ac­cu­mu­lat­ed pe­ri­ods ex­ceed­ed six months.

2. Un­rea­son­able be­hav­iour

If a spouse has be­haved in such a way that the pe­ti­tion­er can­not rea­son­ably be ex­pect­ed to live with the re­spon­dent, a mar­riage would be con­sid­ered to have been ir­re­triev­ably bro­ken down. The test em­ployed by the court is whether a right-think­ing per­son would come to the con­clu­sion that the re­spon­dent has be­haved in such a way that the pe­ti­tion­er can­not be rea­son­ably ex­pect­ed to live with that spouse, hav­ing tak­en in­to ac­count the whole of the cir­cum­stances and the char­ac­ters and per­son­al­i­ties of the par­ties. The facts up­on which a pe­ti­tion­er can re­ly to prove this fact are var­ied and in­clude do­mes­tic vi­o­lence, adul­ter­ous re­la­tion­ships and re­fusal of a par­ty to live with the pe­ti­tion­er. A spouse is not en­ti­tled to re­ly on this fact if af­ter the last in­ci­dent up­on which the pe­ti­tion­er re­lies and proves the par­ties con­tin­ued to live to­geth­er in the same house­hold for a pe­ri­od or ac­cu­mu­lat­ed pe­ri­ods ex­ceed­ed six months.

3. De­ser­tion

If a spouse has de­sert­ed the oth­er spouse for a con­tin­u­ous pe­ri­od of at least two years im­me­di­ate­ly pre­ced­ing the pe­ti­tion for di­vorce, a mar­riage would be con­sid­ered to have been ir­re­triev­ably bro­ken down.

Spous­es must not have rec­on­ciled for a pe­ri­od(s) to­talling more than six months dur­ing the two-year pe­ri­od oth­er­wise the com­mence­ment date for the two-year pe­ri­od starts over. If the pe­ri­od(s) of rec­on­cil­i­a­tion is less than six months, the pe­ri­od(s) is not count­ed in the two-year pe­ri­od.

4. Sep­a­ra­tion for two years with the con­sent of the oth­er par­ty

If a mar­ried cou­ple lived sep­a­rate and apart for a con­tin­u­ous pe­ri­od of at least two years im­me­di­ate­ly pre­ced­ing the pe­ti­tion and the oth­er spouse con­sents to the di­vorce be­ing grant­ed, a mar­riage would be con­sid­ered to have been ir­re­triev­ably bro­ken down. Spous­es must not have rec­on­ciled for a pe­ri­od(s) to­talling more than six months dur­ing the two-year pe­ri­od oth­er­wise the com­mence­ment date for the two-year pe­ri­od starts over. If the pe­ri­od(s) of rec­on­cil­i­a­tion is less than six months, the pe­ri­od(s) is not count­ed in the two-year pe­ri­od.

It is im­por­tant to note that par­ties can live sep­a­rate and apart un­der the same roof. That is, there need not be a phys­i­cal sep­a­ra­tion if the par­ties are in fact liv­ing sep­a­rate and apart or liv­ing sep­a­rate lives.

5. Sep­a­ra­tion for a pe­ri­od of five years

If a mar­ried cou­ple who lived sep­a­rate and apart for a con­tin­u­ous pe­ri­od of at least five years im­me­di­ate­ly pre­ced­ing the pre­sen­ta­tion of the pe­ti­tion, a mar­riage would be con­sid­ered to have been ir­re­triev­ably bro­ken down. No con­sent is need­ed by the oth­er spouse. Spous­es must not have rec­on­ciled for a pe­ri­od(s) to­talling more than six months dur­ing the five-year pe­ri­od oth­er­wise the com­mence­ment date for the five-year pe­ri­od starts over. If the pe­ri­od(s) of rec­on­cil­i­a­tion is less than six months, the pe­ri­od(s) is not count­ed in the five-year pe­ri­od.

De­cree nisi and de­cree ab­solute

If the court finds that one of the facts above has been proven, the court would grant a de­cree nisi. The de­cree nisi does not end the mar­riage and it is a kind of pro­vi­sion­al de­cree that a mar­riage is con­sid­ered to have been ir­re­triev­ably bro­ken down. Af­ter de­cree nisi has been pro­nounced, the pe­ti­tion­er must wait for three months or such oth­er date set by the court usu­al­ly six weeks be­fore ap­ply­ing for the de­cree nisi to be made ab­solute. In or­der to be able to re­mar­ry, a de­cree ab­solute has to be ap­plied for and ob­tained. The de­lay is to al­low time for any­one who ob­jects to the di­vorce to tell the court why they ob­ject or for par­ties to rec­on­cile.

Cus­tody and sup­port (child and spousal) and prop­er­ty is­sues

A court would not grant a de­cree ab­solute if the court is not sat­is­fied that ad­e­quate pro­vi­sion has been made for the chil­dren of the fam­i­ly or for the spouse in cer­tain cas­es or for any oth­er good rea­son. Please note that di­vorces for per­son mar­ried un­der the Mus­lim Mar­riage and Di­vorce Act Chap 45:02 would vary from the above, so please con­sult with an at­tor­ney.

This ar­ti­cle sets out gen­er­al guide­lines, All le­gal rules have ex­cep­tions and vari­a­tions. How the law ap­plies to you de­pends on the facts of your case. This col­umn is an ini­tia­tive of the Trinidad Guardian and the Law As­so­ci­a­tion with as­sis­tance from stu­dents of the Hugh Wood­ing Law School.