How long does one have to be married before filing for a divorce?

According to the Divorce Act (“The Act”), there is no requirement for parties to be married for any number of years. This is a very important and significant change which has been brought about by the Act. Previously, under the former Matrimonial Causes Act, parties had to be married for at least three (3) years before they could petition the Court for a divorce. To the contrary, there is now a legitimate presumption that parties can be married for as little as one month prior to commencing divorce proceedings once it can be established that the marriage has broken down irretrievably.

What does irretrievable breakdown of the marriage mean?

Once it is established that either spouse is resident within the Federation for the period of at least one year prior to commencement of divorce proceedings, then the spouse who files for divorce must establish that there has been an irretrievable breakdown of the marriage.

When we speak of ‘irretrievable’ it refers to a situation or something which cannot be put right. Therefore, when we refer to a marriage which has broken down irretrievably, it simply means that the marriage is at the point in which it cannot be put right or that it is ‘broken beyond repair’.

Pursuant to the Act, there are a variety of ways (circumstances) in which a party can establish that his/her marriage has broken down irretrievably. These are provided below and for which only one of the circumstances must be established to show that there has been an irretrievable breakdown of marriage:

• Separation for two (2) years - A husband and wife must have lived separate and apart from each other for at least two (2) years immediately preceding the commencement of the divorce proceedings and have both made a statement that each of them believes that the marriage has broken down

• Separation for five (5) years - husband and wife have lived separate and apart for at least five years immediately preceding the commencement of the divorce proceedings

  Whereas two different time periods for separation (2 years and 5 years) are provided, one must note that if parties are separated for at least two years but both are in agreement that the marriage has broken down irretrievably then they can both provide a statement to this effect. However, in cases where this is not possible then both parties must wait until 5 years has passed to file for a divorce without the need to provide a statement. As evident, it appears that the law then presumes that if parties have been separated for at least five years prior to filing a divorce then it must be that the marriage has broken down irretrievably.

• Adultery - either husband or wife (or both) have committed adultery. This means that it must be established that either or both parties have engaged in an extra marital affair

• Physical & Mental Cruelty - either husband or wife (or both) have treated the other with either physical or mental cruelty or some other type of behavior akin to intolerable conduct making it impossible for them to remain married. In other words, physical and mental cruelty refers to a course of treatment by one spouse to another which endangers life, limb or health and renders the parties living together unsafe or

• Desertion - either husband or wife left the other or deserted the other without cause for a period of one year or more. Desertion involves a situation wherein one spouse abandons or leaves the other spouse without any particular reason

In next week’s Part 3 of this crash course, we will look at further conditions which must be satisfied before a Divorce can be obtained as well as the necessary documents to be filed at Court.

By: MORTON ROBINSON, L.P.
Attorneys-at-law, Trademark & Patent Agents, Notaries Public
Suites 6 & 7 Heritage Plaza
P.O. Box 430, Main Street, Charlestown, Nevis
Tel: +1(869) 469 - MRLP (6757)
Email:info@mortonrobinson.com