Services / Civil and commercial litigation
Divorce, custody and marital property
Family cases differ from other civil matters in that the outcome stays with people for years, particularly the part concerning children. Work here therefore begins by identifying what can be agreed, leaving only what genuinely needs a court to decide.
Two routes to a divorce
The first is divorce by consent, registered as such. The second is a petition to the court where the other party does not agree. The second requires one of the grounds the statute lays down; saying only that the marriage has broken down, without fitting any ground, is not enough. That is the commonest misunderstanding in this area.
The statutory grounds
Section 1516 of the Civil and Commercial Code sets out the grounds one by one, from a spouse maintaining or honouring another person as a spouse, through misconduct causing the other serious humiliation or undue hardship, serious violence or insult towards the other or their parents, wilful desertion for more than a year, voluntary separation for more than three years, and failure to give proper support. Each has its own elements that must be established.
Custody
Section 1520 provides that on a divorce by consent the spouses are to agree in writing which of them exercises parental power over which child, and where there is no agreement or none can be reached, the court decides. On a divorce by judgment the court hearing the petition decides as well. The statute states the test plainly: the court is to have regard above all to the welfare and interests of the child, not to the rights and wrongs between the adults.
How marital property is divided
Section 1533 is short and clear: on divorce, marital property is divided in equal shares. The cut-off is set by section 1532 in two cases. On a divorce by mutual consent, the property is divided as it stands at the time the divorce is registered. On a divorce by judgment, the property part of the judgment takes effect retrospectively to the day the petition was filed. That difference bears directly on assets that appear or disappear along the way.
Compensation
Section 1523 provides that where the court grants a divorce on the ground in section 1516(1), the spouse may claim compensation from the other spouse and from the person who was maintained or honoured, or who was the cause of the divorce. The closing paragraph makes an exception: a spouse who consented to or connived at the conduct cannot claim.
PREPARE
What to bring
- The marriage registration and both house registrations
- Birth certificates for every child
- A list of property acquired during the marriage, with the title documents
- Evidence of both parties' income
- Messages and documents bearing on the ground relied on, kept whole
QUESTIONS
Questions this raises
The other party will not agree to a divorce. What can be done?
Without consent the remaining route is a petition to the court, which requires one of the grounds in section 1516 and proof of all its elements. What can be done now is to gather the relevant documents and messages in order, because several of the grounds are established by a pattern of conduct rather than a single event.
Property bought during the marriage but registered in one name only.
The name on the title is not the sole test. What matters is when and how the property was acquired, because the equal division in section 1533 applies to marital property, not to everything a couple holds. Records of payment, the source of the funds, and the timing carry more weight than the name on the deed.
LAW
The legislation
- Civil and Commercial Code, sections 1516, 1520, 1523, 1532 and 1533
ENQUIRIES
