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British Virgin Islands Family Law

    British Virgin Islands

    Jeremy D. Morley

The law that applies in the British Virgin Islands to divorce and the financial consequences of divorce is found primarily in the Matrimonial Proceedings and Property Act 1995. 

1.  Grounds for divorce in the British Virgin Islands:

The sole ground of divorce is irretrievable breakdown of marriage, which must be established by proof that:

          (a) The respondent committed adultery and the petitioner finds it intolerable to live with the respondent; or

          b) The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or

          c) the Respondent has deserted the petitioner for a continuous period of at least 2 years immediately before the filing for the divorce; or

          d) Both parties have lived apart for a continuous period of at least 2 years immediately before the filing of the divorce and the respondent consents to the divorce being granted; or

          e) The parties have lived apart for a continuous period of at least 5 years immediately before the filing of the divorce.  

2.  Spousal maintenance in the British Virgin Islands:

Section 27 of the Matrimonial Proceedings and Property Act 1995 contains the provisions governing entitlement to spousal maintenance. The Act clearly discriminates against men. Section 27 states that:

    “(1) Either party to a marriage may apply to the Court for an order under this section on the ground that the other party to the marriage (in this section referred to as “The Respondent”)

             (a) Being the husband, has willfully neglected  

                      (i) to provide reasonable maintenance for the applicant; or  

    (b) Being the wife, has willfully neglected to provide, or to make a proper contribution towards reasonable maintenance

                   (i) for the applicant in a case where, by reason of the impairment of the applicants earning capacity through age, illness or disability of mind or body and having regard to any resources of the applicant and the Respondent respectively which are, or should properly be made, available for the purpose, it is reasonable in all the circumstances to expect the Respondent so to provide or contribute.”  

3.  Asset division upon divorce in the British Virgin Islands:

The BVI law provides the courts with enormous discretion. The Act is based on UK legislation and courts interpret the provisions in accordance with English precedent.   

Section 26 of the Act provides that the Court:

“[s]hall have regard to all the circumstances of the case including the following matters:-  

“(a) the income, earning capacity, property and other financial reserved which each of the parties to the marriage has or is likely to have in the foreseeable future;  

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future,  

(c) the standard of living enjoyed by the family before the breakdown of the marriage,  

(d) the age of each party to the marriage and the duration of the marriage,  

(e) any physical or mental disability of either of the parties to the marriage,  

(f) contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home under section 49,  

(g) any order made under section 49,  

(h) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage, of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring

and to so exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligation and responsibilities toward the other.”  

 In Findlay v. Findlay, a 2009 decision of the Eastern Caribbean Supreme Court in the British Virgin Islands, the Court applied the exception to the “yardstick of equality.” The Court stated that English case law, and specifically Miller v Miller [2006] 2 WLR page 1288 provided that,  

    “When their partnership ends each is entitled to an equal share of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasize the qualifying phrase “unless there is good reason to the contrary.” The yardstick of equality is to be applied as an aid, not a rule.”  

The Court determined that here there was “good reason to the contrary” since the contributions made by the respondent to the welfare of the family were minimal. Specifically,  

    “An important aspect of a family life is the financial contribution that each party contributes or saves the other from contributing towards the family’s welfare. If it means that one party remains in the home whilst giving the other the emotional support to pursue his or her career then this contribution is significant. It is a mutual giving and taking to the benefit of the family. However in this case, I have found that the Respondent fell far short of discharging these obligations to the welfare of the family. His disclosed salary up to the time he left the matrimonial home was $4,000.00 to $5,000.00 a month. The Petitioner was not aware or informed of this level of earnings by the Respondent. I have found that after considering the evidence in this case, the Respondent although an able bodied and skilled man, capable of earning a substantial income, almost equal to or more than that of the Petitioner, did not contribute of his finances or his emotional support in any significant or substantial way to the welfare of the family.”  

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