The Turks and Caicos Islands are a British Overseas Territory, a possession of the United Kingdom currently ruled directly by a British-appointed governor. Its autonomous system of government was suspended in August 2009. We have worked on international divorce and asset management matters concerning the Turks and Caicos Islands with local counsel there.
The United Nations Committee on Decolonisation includes the territory on the United Nations list of Non-Self-Governing Territories. The following is a portion of their Family Law Code:
TURKS AND CAICOIS ISLANDS
CHAPTER 89
DOMESTIC PROCEEDINGS ORDINANCE
Revised Edition
(showing the law as of 15 May 1998, current through 2011)
DOMESTIC PROCEEDINGS ORDINANCE
CHAPTER 89
Part I: Preliminary
- This Ordinance may be cited as the Domestic Proceedings Ordinance.
- (1)In this Ordinance-
"actual custody", in relation to a child, means the actual possession of his person;
"affiliation order" has the meaning given in subsection (2) of section 35;
"applicant" means the person making a complaint under this Ordinance;
"Attorney" means an Attorney of the Supreme Court;
"child", in relation to one or both of the parties to a marriage, includes an illegitimate child of that party or, as the case may be, of both parties;
"child of the family", in relation to the parties to a marriage, means-
(a) a child of both of those parties; and
(b) any other child who has been treated by both of those parties as a child of their family;
"Clerk of the Magistrate's Court" includes any officer authorized by the Governor to carry out the functions of the Clerk of the Magistrate's Court under this Ordinance;
"interim custody order" has the meaning given in section 20(1)(b)
"interim maintenance order" has the meaning given in section 20(l)(a);
"legal custody", in relation to a child, means so much of the parental rights and duties as to the person of the child, including the place and manner in which his time is spent;
"modifications" includes additions, omissions and amendments;
"respondent" means the person against whom a complaint is made under this Ordinance;
"Supervisor" means a person appointed by the Governor to act as a Supervisor for the purposes of the Juveniles Ordinance.
(2) References in this Ordinance to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.
(3) For the avoidance of doubt it is declared that references in this Ordinance to remarriage include references to a marriage which is by law void or voidable.
Part II: Matrimonial Proceedings
- Either party to a marriage may apply to the Magistrate for an order under section4 on the ground that the other party to the marriage-
(a) has failed to provide reasonable maintenance for the applicant;
(b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any chi1d of the family;
(c) has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; or
(d) has deserted the applicant.
- (1)Where, on an application for an order under this section, the applicant satisfies the Magistrate of any ground mentioned in section 3, the Magistrate may, subject to the provisions of this Part, make any one or more of the following orders-
(a) an order that the respondent shall make to the applicant such periodical payments, and for such term, as may be specified in the order;
(b) an order that the respondent shall pay to the applicant such lump sum as may be so specified;
(c) an order that the respondent shall make to the applicant for the benefit of a child of the family to whom the application relates, or to such a child, such periodical payments and for such term, as may be so specified;
(d) an order that the respondent shall pay to the applicant for the benefit of a child of the family to whom the application relates, or to such a child, such lump sum as may be so specified.
(2) Without prejudice to the generality of paragraph (b) or (d) of subsection (I), an order under this section for the payment of a lump sum may be made for the purpose of enabling any liability or expenses reasonably incurred in maintaining the applicant, or any child of the family to whom the application relates, before the making of the order to be met.
(3) The amount of any lump sum required to be paid by an order under this section shall not exceed $1,000 or such larger amount as the Governor may by order determine for the purposes of this subsection.
- 5.(1) Where an application is made for an order under section 4, the Magistrate shall, in deciding whether to exercise his powers under that section and, if so, in what manner, have regard to all the circumstances of the case; first consideration being given to the welfare while a minor of any child of the family whohas not attained the age of eighteen years.
(2) In exercising his powers under paragraph (a) or (b) of section 4(1), the Magistrate shall, in particular, have regard to the following matters-
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the Magistrate, be reasonable to expect a party to the marriage to take steps to acquire;
(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 parties to the marriage before the occurrence of the conduct which is alleged as the ground of the application;
(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) the contributions which each of the parties has made, or is likely in the foreseeable future to make, to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties if that conduct is such that it would in the opinion of the Magistrate be inequitable to disregard it.
(3) In exercising his powers under paragraph (c) or (d) of section 4(1), the Magistrate shall, in particular, have regard to the following matters-
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the standard of living enjoyed by the family before the occurrence of the conduct which is alleged as the ground of the application;
(e) the manner in which the child was being, and in which the parties to the marriage expected him to be, educated or trained;
(f)the matters mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (2).
(4) In exercising his powers under section 4 in favour of a child of the family who is not the child of the respondent, the Magistrate shall also have regard-
(a) as to whether the respondent has assumed any responsibility for the child's maintenance and, if he did, to the extent to which, and the basis on which, he assumed that responsibility and to the length of time during which he discharged that
responsibility;
(b) as to whether, in assuming and discharging that responsibility, the respondent did so knowing that the child was not his own child;
(c) to the liability of any other person to maintain the child.
- 6.(1) The term to be specified in any order made under paragraph(a) of section 4(1) shall be such term as the Magistrate thinks fit, except that the term shall not begin earlier than the date of the making of the application for the order and shall not extendbeyond the death of either of the parties to the marriage.
(2) Where an order is made under paragraph (a) of section 4(1) and the marriage of the parties affected by the order is subsequently dissolved or annulled but the order continues in force, the order shall, notwithstanding anything in it, cease to have effect on the remarriage of the party in whose favour it was made, except in relation to any arrears due under the order on the date of the remarriage.
- 7.(1) Subject to subsection(3), no order shall be made under paragraph (c) or (d) of section 4(1) in favour of a child who has attained the age of eighteen years
(2) The term to be specified in an order made under paragraph (c) of section 4(1) in favour of a child may begin with the date of the making of an application for the order in question or any later date but-
(a) shall not in the first instance extend beyond the day on which the child attains the age of fourteen years unless the Magistrate considers that in the circumstances of the case the welfare of the child requires that it should extend to a later date; and
(b) shall not in any event, subject to subsection (3), extend beyond the date of the child's eighteenth birthday.
(3) The Magistrate may make an order under paragraph (c) or (d) of section 4(1) in favour of a child who has attained the age of eighteen years, and may include in an order made under paragraph (c) of that subsection in relation to a child who has not
attained that age a provision for extending beyond the date when the child will attain that age the term for which, by virtue of the order, any payments are to be made to or for the benefit of the child, if it appears to the Magistrate-
(a) that the child is, or will be, or if such order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will be, in gainful employment; or
(b) that there are special circumstances which justify the making of the order or provision.
(4) Any order made under paragraph (c) of section 4(1) shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order.
- (1) Either party to a marriage may apply to the Magistratefor an order under this section on the ground that either the party making the application or the other party to the marriage has agreed to make such financial provision as may be specified in the application and, subject to subsection (3), the Magistrate on such application may, if-
(a) he is satisfied that the applicant or the respondent, as the case may be, has agreed to make that provision; and
(b) he has no reason to think that it would be contrary to the interests of justice to exercise his powers under this section, order that the applicant or the respondent, as the case may be, shall make the financial provision specified in the application.
(2) In this section "financial provision" means the provision mentioned in any one or more of the following paragraphs, that is to say-
(a) the making of periodical payments by one party to the other;
(b) the payment of a lump sum by one party to the other;
(c) the making of periodical payments by one party to a child of the family or to the other party for the benefit of such a child;
(d) the payment by one party of a lump sum to a child of the family or to the other party for the benefit of such a child, and any reference in this section to the financial provision specified in an application made under subsection (1) or specified by the court under subsection (5) is a reference to the type of I provision specified in the application or by the Magistrate, as the case may be, to the amount so specified as the amount of any payment to be made there under and, in the case of periodical payments, to the term for which the payments are to be made.
(3) Where the financial provision specified in an application under subsection (1) includes or consists of provision in respect of a child of the family, the Magistrate shall not make an order under that subsection unless he considers that the provision
which the applicant or the respondent has agreed to make in respect of that child provides for, or makes a proper contribution towards, the financial needs of the child.
(4) A party to a marriage who has applied for an order under section 4 shall not be precluded at any time before the determination of that application from applying for an order under this section; but if an order is made under this section on the application of either party and either of them has also made an application for an order under section 4, the application made for the order under section 4 shall be treated as if it had been withdrawn.
(5) Where on an application under subsection (1) above the Magistrate decides that it would be contrary to the interests of justice to make an order for the making of the financial provision specified in the application, or that any financial provision which the applicant or the respondent has agreed to make in respect of a child of the family does not provide for, or make a proper contribution towards, the financial needs of that child, the Magistrate may, if he is of the opinion-
(a) that it would not be contrary to the interests of justice to make an order for the making of some other financial provision specified by the court; and
(b) that, in so far as that other financial provision contains any provision for a child of the family, it provides for, or makes a proper contribution towards, the financial needs of that child, and if both the parties agree, order that the applicant or respondent shall make that other financial provision.
(6) Subject to subsection (8), section 6 shall apply in relation to an order under this section which requires periodical payments to be made to a party to a marriage for his own benefit as that section applies in relation to an order under paragraph (a) of section 4(1).
(7) Subject to subsection (8), section 7 shall apply in relation to an order under this section for the making of financial provision in respect of a child of the family as that section applies in relation to an order under paragraph (c) or (d) of section 4(1).
(8) Where the Magistrate makes an order under this section which contains provision for the making of periodical payments and, by virtue of subsection (4), an application for an order under section 4 is treated as if it had been withdrawn, then the term which may be specified as the term for which the payments are to be made may begin with the date of the making of the application for the order under section 4 or any later date.
(9) Where the respondent is not present or represented by an Attorney at the hearing of an application for an order under subsection (I), the Magistrate shall not make an order under this section unless there is produced to him such evidence as he may require to satisfy himself as to-
(a) the consent of the respondent to the making of the order;
(b) the financial resources of the respondent; and
(c) in a case where the financial provision specified in the application includes or consists of provision in respect of a child of the family to be made by the applicant to the respondent for the benefit of the child or to the child, the financial resources of the child.
- (1) Where the parties to a marriage have been living apart for a continuous period exceeding three months, neither party having deserted the other, and one of the parties has been making periodical payments for the benefit of the other party or of a child of the family, that other party may apply to the Magistrate for an order under this section; and any application made under this subsection shall specify the aggregate amount of the payments so made during the period of three months immediately preceding the date of the making of the application.
(2) Where on an application for an order under this section the Magistrate is satisfied that the respondent has made the payments specified in the application, the Magistrate may, subject to the provisions of this Part, make one or both of the following orders-
(a) an order that the respondent shall make to the applicant such periodical payments, and for such term, as may be specified in the order;
(b) an order that the respondent shall make to the applicant for the benefit of a child of the family to whom the application relates, or to such a child, such periodical payments, and for such term, as may be so specified.
(3) In exercising his powers under this section, the Magistrate-
(a) shall not require the respondent to make payments which exceed in aggregate during any period of three months the aggregate amount paid by the respondent for the benefit of the applicant or a child of the family during the period of three months immediately preceding the date of the making of the application;
(b) shall not require the respondent to make payments to or for the benefit of any person which exceed in amount the payments which the Magistrate considers that he would have required the respondent to make to or for the benefit of that person on an application under section 3 of this Ordinance;
(c) shall not require payments to be made to or for the benefit of a child of the family who is not a child of the respondent unless the Magistrate considers that it would have made an order in favour of that child on an application under section 3.
(4) Where on an application under this section the Magistrate considers that the orders which he has the power to make under this section-
(a) would not provide reasonable maintenance for the applicant; or
(b) if the application relates to a child of the family, would not provide, or make a proper contribution towards reasonable maintenance for that child, the Magistrate shall refuse to make an order under this section, but may treat the application as if it were an application for an order under section 4.
(5) The provisions of section 5 shall apply in relation to an application for an order under this section as they apply in relation to an application for an order under section 4, subject to the modification that for the reference in paragraph (c) of section 5(2) to the occurrence of the conduct which is alleged as the ground of the application, there shall be substituted a reference to the living apart of the parties to the marriage.
(6) Section 6 shall apply in relation to an order under this section which requires periodical payments to be made to the applicant for his own benefit as that section applies in relation to an order under paragraph (a) of section 4(1).
(7) Section 7 shall apply in relating to an order under this section for the making of periodical payments in respect of a child of the family as that section applies in relation to an order under paragraph (c) of section 4(1).
Powers of Magistrate as to custody etc. of children
- (1)Where an application is made by a party to a marriage for an order under section 4, 8 or 9, then, if there is a child of the family who is under the age of eighteen years, the Magistrate shall not dismiss or make a final order on the application until hehas decided whether or not to exercise his powers under this section and, if so, in what manner.
(2) Subject to subsection (7), on an application for an order under section 4, 8 or 9 the Magistrate, whether or not he makes an order under any of those sections, shall have power to make such order regarding-
(a) the legal custody of any child of the family who is under the age of eighteen years; and
(b) access to any such child by either of the parties to the marriage or any other person who is a parent of that child, as the Magistrate thinks fit.
(3) An order shall not be made under subsection (2) giving the legal custody of a child to a person other than a party to the marriage or a parent of the child unless the Magistrate considers that in the circumstances of the case the welfare of the child requires that legal custody should be given to such a person.
(4) An order shall not be made under this section giving the legal custody of a child to more than one person; but where the Magistrate makes an order giving the legal custody of a child to any person under this section, he may order that a party to the marriage in question who is given the legal custody of the child shall retain all or such as the Magistrate may specify of the parental rights and duties comprised in legal custody (other than the right to the actual custody of the child) and shall have those rights and duties jointly with the person who is given the legal custody of the child.
(5) An order made under subsection (2), shall cease to have effect as respects any child when he attains the age of eighteen years.
(6) Where an order is made under subsection (2), the Magistrate may direct that the order, or such provision of the order as he may specify shall not have effect until the occurrence of an event specified by him or the expiration of a period so specified; and where the Magistrate has directed that the order, or any provision thereof, shall not have effect until the expiration of that period, direct that the order or that provision thereof, shall not have effect until the expiration of such further period as he may specify.
(7) The Magistrate shall not have power to make an order under subsection (2) with respect to a child in respect of whose custody an order made by the Supreme Court is for the time being in force.
- (1) Where the Magistrate makes an order under section 10(2) regarding the legal custody of a child and it appears to the Magistrate that there are exceptional circumstances which make it desirable that the child should be under the supervision of an independent person, the Magistrate may order that the child be under the supervision of a Supervisor.
(2) An order made under this section shall cease to have effect as respects any child when he attains the age of eighteen years.
- (1) Where on an application under section3 the Magistrate, although not satisfied of any ground mentioned in that section, makes an order under section 10(2) giving to the applicant the right to the actual custody of a child of the family, the Magistrate shall have the same powers to make an order in respect of that child under paragraph (c)and (d) of section 4(1) as the Magistrate would have if he were so satisfied.
(2) Whereby an order under section 10(2), on an application for an order under section 4 or 9, the right to the actual custody of a child is given to the respondent, the Magistrate may make one or both of the following orders-
(a) an order that the applicant shall make to the respondent for the benefit of the child, or to the child, such periodical payments, and for such term, as may be specified in the order;
(b) an order that the applicant shall pay to the respondent for the benefit of the child, or to the child, such lump sum as may be so specified.
(3) Where, by an order under section 10(2), on an application for an order under section 8, the right to the actual custody of a child is given to the party to the marriage who has agreed to make the financial provision specified in the application, the
Magistrate may make one or both of the following orders-
(a) an order that the other party to the marriage shall make to that party for the benefit of the child, or to the child, such periodical payments, and for such terms, as may be specified in the order;
(b) an order that the other party to the marriage shall pay to that party for the benefit of the child, or to the child, such lump sum as may be so specified.
(4) Where by an order made under section 10(2) the legal custody of a child is given to a Person who is a parent of the child but not a party to the marriage in question, the Magistrate may make one or more of the following orders-
(a) an order that a party to the marriage shall make to that parent for the benefit of the child such periodical payments, and for such tern, as may be specified in the order;
(b) an order that a party to the marriage shall make to that parent for the benefit of the child, or to the child, such lump sum as may be so specified.
(5) The Magistrate, in deciding whether to exercise his powers under subsection (2), (3) or (4) in relation to any child and, if so, in what manner, shall have regard to all the circumstances of the case, including the matters to which the Magistrate is required to have regard under section 5(3), and, in deciding whether to make an order against a party to the marriage who is not a parent of that child, shall also have regard among the circumstances of the case-
(a) as to whether that party had assumed any responsibility for the child's maintenance and, if so to the extent to which and the basis upon which that party assumed that responsibility and to the length of time for which he discharged that responsibility;
(b) as to whether in assuming and discharging that responsibility that party did so knowing that the child was not his own child;
(c) to the liability of any other person to maintain the child.
(6) Section 7 (other than paragraph (a) of subsection (3)) shall apply in relation to an order under paragraph (a) of subsection (2), paragraph (a) of subsection (3) or paragraph (a) of subsection (4) as it applies in relation to an order under paragraph (c) of section 4(1).
(7) Subsections (2) and (3) of section 4 shall apply in relation to an order under paragraph (b) of subsection (2), paragraph (b) of subsection (3) or paragraph (b) of subsection (4) as they apply in relation to an order under section 4(l)(d); and no order shall be made under paragraph (b) of subsection (2), paragraph @) of subsection (3) or paragraph (b) of subsection (4) in respect of a child who has attained the age of eighteen years.
(8) Where the Magistrate, by virtue of section 10(6), directs that an order made under subsection (2) of that section in respect of a child, or the provision of the order providing for the custody of the child, shall not have effect until the expiration of a specified period or the occurrence of a specified event, an order made in respect of that child under paragraph (a) of subsection (2), paragraph (a) of subsection (3) or paragraph (a) of subsection (4) shall only require payments to be made from the date on which the order made under section 10(2), or that provision of the order, takes effect.
- (1) Where an application is made by a party to a marriage for an order under section 4, 8 or 9 the Magistrate before exercising his powers under section 10 or 11 in respect of any child of the family, shall give each party to the marriage and any other person who, as a parent of the child, is present or represented byan Attorney at the hearing, an opportunity of making representations; and any reference in this section to a party to the proceedings shall include a reference both to a party to the marriage and to any other such person who is present or represented.
(2) Where in the case of such an application there is a child of the family who is not the child of both parties to the marriage in question, the Magistrate shall not exercise his powers under section 10 or 11 in relation to that child unless-
(a) any person who is a parent of the child though not a party to the marriage, is present or represented by an Attorney at the hearing; or
(b) it is proved to the satisfaction of the Magistrate, on oath or otherwise, that such steps have been taken as may be directed with a view to giving notice to that person of the making of the application and of the time and place appointed for the hearing, except that notice shall not be required to be given under paragraph
(c) to any person as the father of an illegitimate child unless that person has been adjudged by the Magistrate to be the father of the child.
(3) Where the Magistrate, on such an application, is of the opinion that he has not sufficient information to decide whether or not to exercise his powers under section 10 or 11 and, if so, in what manner, he may, at any stage of the proceedings on that application, request a Supervisor to make to the Magistrate a report, orally or in writing, with respect to any such matter as the Magistrate may specify (being a matter appearing to the Magistrate to be relevant to the decision); and it shall be the duty of the Supervisor to comply with the request.
(4) Any report made in pursuance of subsection (3) shall be made or, if in writing, furnished to the Magistrate at the hearing of the application and, if the report is in writing-
(a) a copy of the report shall be given to each party to the proceedings or to his Attorney before or during the hearing; and
(b) the Magistrate may, if he thinks fit, require that the report, or such part thereof as he may specify, shall be read aloud at the hearing.
(5) The Magistrate may, and, if requested to do so at the hearing by a party to the proceedings or his Attorney, shall, require the Supervisor by whom the report was made to give evidence on or with respect to the matters referred to in the report and if the Supervisor gives such evidence, any party to the proceedings may give or call evidence with respect to the matters referred to in the report or in the evidence given by the Supervisor.
(6) Subject to Subject to subsection (7), the Magistrate may take account of-
(a) any statement contained in a report made or furnished to him under subsection (4); and
(b) any evidence given under subsection (5) by the Supervisor by whom the report was made, so far as that statement or evidence relates to any of the matters specified by the Magistrate under subsection (3), notwithstanding any Ordinance or rule of law relating to the admissibility of evidence.
(7) A report made in pursuance of subsection (3) shall not include anything said by either of the parties to a marriage in the course of an interview which took place with, or in the presence of, a Supervisor with a view to the reconciliation of those parties, unless both parties have consented to its inclusion; and if anything so said is included without the consent of both those parties in any such report then, unless both those parties agree otherwise, that part of the report shall, for the purposes of the giving of evidence under subsection (5) and for the purposes of subsection (6), be treated as not forming part of the report.
(8) Where for the purposes of this section the Magistrate adjourns the hearing of any application, then, subject to adequate notice of the time and place of the resumption of the hearing to be given to the parties, the Magistrate may resume the hearing at the time and place appointed notwithstanding the absence of any or all of the parties.
- (1) Where two persons who have a parental right or duty jointly by virtue of an order under section 10(2) disagree on any question affecting the child's welfare, either of them may apply to the Magistrate for his direction, and the Magistrate may make such order regarding the matters of difference as he thinks fit.
(2) Where the Magistrate makes an order under subsection (1) with respect to any child, the Magistrate may, on an application made by either of the persons who have a parental right or duty jointly, by order, vary or revoke the order.
(3) The power of the Magistrate under section 13(3) to request a Supervisor to make a report, shall apply in relation to the exercise by the Magistrate of his powers under this section as it applies in relation to the exercise by the Magistrate of his powers under section 10 or 11, and the provisions of subsections (4) to (8) of section 13 shall apply accordingly.
- 15.(1) The Magistrate, on making an order under section 10(2) regarding the legal custody of a child, or at any time whilesuch an order is in force, shall have power on an application made by a grandparent of the child to make such order requiringaccess to the child to be given to that grandparent as the Magistrate thinks fit.
(2) Subsections (5), (6) and (7) of section 10 shall apply in relation to an order under this section as they apply in relation to an order under section 10(2)(b).
(3) Where the Magistrate has made an order under subsection (1) requiring access to a child to be given to a grandparent, the Magistrate shall have power to vary or revoke the order on an application made-
(a) by the grandparent;
(b) by either party to the marriage in question; or
(c) if the child is not a child of both the parties to the marriage, by any person who, though not a party to the marriage, is a parent of the child.
(4) Section 13 shall apply in relation to the exercise by the Magistrate of his powers under this section on an application under subsection (1) or (3) as it applies in relation to the exercise by the Magistrate of his powers under section 10 or 11 on an application under section 3, and any reference to a party to the proceedings in subsection (4) or (5) of section 13 shall include-
(a) in the case of an application under subsection (I), a reference to the grandparent who has made an application under that subsection; and
(b) in the case of an application under subsection (3), a reference to the grandparent who has access to the child under the order for the variation or revocation of which the application is made.
(5) Where an order made under section 10(2)(a) in relation to a child ceases to have effect, by virtue of an order or direction of the Magistrate or by virtue of any provision of this Part, any order made under this section regarding access to the child by a grandparent shall also cease to have effect.
(6) The Magistrate shall have power to make an order under this section in favour of a grandparent of a child notwithstanding that the child is illegitimate.
- In exercising his powers under this Part in relation to any child, the Magistrate shall have regard to the welfare of the child as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of the custody or upbringing of the child is superior to that of the mother, or the claim of the mother is superior to that of the father.