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Family and matrimonial disputes can be among the most difficult legal matters a person may face. Divorce, child custody, maintenance domestic violence and disputes concerning family arrangements often involve not only important legal rights, but also significant emotional consequences.
In Mauritius, family-law matters are dealt with principally before the Family Division of the Supreme Court of Mauritius.
This guide provides an overview of some of the principal family-law matters in Mauritius, including divorce, child custody, maintenance and related applications.
Divorce in Mauritius
When a marriage has broken down and matrimonial life can no longer reasonably continue, either the husband or the wife may seek a divorce before the Supreme Court.
Divorce proceedings in Mauritius are governed principally by the Civil Code and the Divorce and Judicial Separation Act 1982. The circumstances of each case are different, and the appropriate ground for divorce will depend on the facts and circumstances leading to the breakdown of the marriage.
Under Article 229 of the Mauritian Civil Code, divorce may be pronounced on several grounds, including:
- Divorce for fault (en cas de faute);
- Divorce for breach of common/shared life (en cas de rupture de la vie commune);
- Divorce by acceptance of the principle of the breakdown of the marriage (en cas d’acceptation du principe de la rupture du marriage); and
- Divorce by mutual consent (en cas de consentement mutuel).
Divorce for Fault
A spouse may seek divorce where the conduct of the other spouse constitutes a serious or repeated breach of the duties and obligations arising from marriage.
Depending on the circumstances, allegations may include adultery, abandonment, serious domestic misconduct or other conduct amounting to a matrimonial fault.
The evidence required will depend on the particular facts of the case. A divorce based on fault may be contested where the allegations are disputed.
Article 231 of the Code Civil Mauricien further provides that divorce on the ground of fault may be sought by one spouse where the other spouse has been sentenced to a penal servitude of at least five years.
Divorce for Breach of Common/Shared Life
A spouse may apply for divorce on the ground of the breakdown of the common matrimonial life where the spouses have been living separately in fact for three years.
The spouse who applies for divorce on the ground of the breakdown of the common matrimonial life shall bear all the consequences and obligations arising therefrom. In the divorce petition, that spouse must specify the means by which he or she will fulfil his or her obligations towards the other spouse and children.
Divorce by Acceptance of the Principle of the Breakdown of the Marriage
Divorce may be requested by either spouse, or jointly by both spouses, when they accept the principle that the marriage has broken down, without regard to the facts giving rise to the breakdown, but not without regard to its effects or consequences.
Divorce on the basis of acceptance of the principle of the breakdown of the marriage can only be sought twenty-four months after the marriage.
Divorce by Mutual Consent
Divorce by mutual consent is often regarded as the most convenient and amicable form of divorce for spouses who have mutually decided to bring their marriage to an end and are able to agree on the consequences of the divorce.
Divorce by mutual consent can only be sought twenty-four months after the marriage.
Unlike a contested divorce, where spouses may disagree on matters such as custody, maintenance, property or other matrimonial issues, divorce by mutual consent allows the parties to reach an agreement and present their agreed arrangements to the Court for approval (homologation).
Divorce by Mutual Consent involves an agreement dealing with matters such as:
- arrangements concerning children;
- custody and access;
- maintenance;
- financial arrangements;
- property and other consequences of the divorce.
The agreement must satisfy the legal requirements and remains subject to the court’s consideration and approval where required.
How Does the Divorce Process Work in Mauritius?
The precise procedure will depend on the type of divorce and the circumstances of the parties.
Generally, the process involves the preparation and filing of the divorce petition before the registry of the Family Division of the Supreme Court.
The court may consider whether reconciliation is possible and will subsequently deal with the substantive issues arising from the divorce.
Where a provisional divorce decree is granted, the divorce becomes permanent after three months.
Documents Commonly Required for Divorce
Documents generally required for divorce proceedings include:
- a recent marriage certificate (issued within three months);
- birth certificates;
- National Identity Cards; and
- birth certificates of children born from the marriage.
The documents required may vary depending on the circumstances, particularly where the marriage or birth of a child took place outside Mauritius.
Child Custody and Access in Mauritius
When parents separate or divorce, arrangements must be made concerning their children.
Issues may include:
- custody;
- residence of the child;
- parental responsibility;
- visitation or access rights;
- education;
- healthcare;
- travel outside Mauritius; and
- financial support.
The welfare and best interests of the child are fundamental considerations in family-law proceedings.
A parent who does not have primary physical custody may nevertheless have important rights concerning contact and access to the child.
Each case must be considered according to its individual circumstances, including the child’s needs, the relationship between the child and each parent, and the practical arrangements available to the family.
Child Maintenance and Alimony
Financial issues are often an important part of family-law proceedings.
Parents have obligations towards their children, and the court may make appropriate orders concerning financial support.
Depending on the circumstances, a spouse may also seek maintenance from the other spouse.
Applications concerning maintenance may involve consideration of matters such as:
- the income and financial resources of the parties;
- the needs of the spouse or child;
- living expenses;
- earning capacity;
- existing financial obligations; and
- the circumstances of the family.
A maintenance application should therefore be assessed on its individual facts rather than on a fixed amount applicable to every case.
Domestic Violence and Protection Orders
Family law may also involve situations where a person alleges domestic violence.
Where appropriate, a person may seek protection under the applicable legislation before the appropriate District Courts. Applications for Protection Order can involve allegations of physical, psychological, verbal, emotional or other forms of domestic abuse recognised by law.
Divorce and Property Matters
Divorce may also raise questions concerning matrimonial property, ownership, debts, loans and financial arrangements between spouses.
The legal position can depend on factors such as:
- the matrimonial regime applicable to the marriage;
- ownership of particular assets;
- contributions made by the spouses;
- outstanding loans and liabilities;
- agreements between the spouses; and
- the circumstances in which property was acquired.
Divorce Where the Marriage Took Place Abroad
A marriage celebrated outside Mauritius does not necessarily prevent a person from seeking a divorce before the Mauritian courts.
The jurisdiction of the Mauritian courts will depend on the applicable legislation and the circumstances of the parties, including matters such as nationality, residence and the registration or recognition of the marriage.
Anyone married abroad who is considering divorce in Mauritius should obtain advice on jurisdiction before commencing proceedings.
This article is provided for general information and educational purposes only and does not constitute legal advice. Family-law legislation and procedures may change, and the outcome of any particular matter depends on its facts and circumstances. You should obtain advice on your individual situation from a qualified legal practitioner.