Bahamas Divorce

Bahamas Divorce

Grounds

The grounds for a divorce in The Bahamas are set forth in the Bahamas Matrimonial Causes Act. Section 16 of the Act provides as follows:

“16. (1) A petition for divorce may be presented to the court either by the husband or the wife on any of the following grounds that the respondent –

(a) has since the celebration of the marriage committed adultery; or

(b) has since the celebration of the marriage treated the petitioner with cruelty; or

(c) has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or

(d) has lived separate and apart from the petitioner for a continuous period of at least five years immediately preceding the presentation of the petitioner; or

(e) has, since the celebration of the marriage been guilty of a homosexual act, sodomy or has had sexual relations with an animal:

Provided that a wife may also petition on the ground that her husband has since such celebration been guilt of rape.

(2) On a petition for divorce presented by the husband on the ground of adultery or in any other pleading praying for divorce on that ground, the husband shall make the alleged adulterer a co-respondent unless excused by the court on special grounds from doing so.

(3) On a petition for divorce presented by the wife on the ground of adultery, the court may, if it thinks fit, direct that the alleged adulteress be mad a respondent.

(4) On a petition for divorce it shall be the duty of the court –

(a) to inquire, so far as it reasonably can, into the facts alleged and whether there has been any connivance or condonation on the part of the petitioner and whether any collusion exists between the parties; and

(b) to inquire into any counter charges made against the petitioner.

(5) For the purposes of subsection (1)(c) the court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing the necessary intention if the evidence before the court is such that, had that party not been so incapable, the court would have inferred that his desertion continued at that time.

(6) In considering for the purposes of subsection (1) whether the period for which the respondent has deserted the petitioner or has lived separate and apart from the petitioner has been continuous, no account shall be taken of any one period (not exceeding three months) or of any two or more periods (not exceeding three months in all) during which the parties resumed cohabitation but no period during which the parties cohabited shall count as part of the period of desertion or the period for which they lived separate and apart, as the case may be.

(7) Subject to subsection (8) no petition for divorce other than that based on facts existing, and constituting a ground for divorce, prior to the coming into operation of this subsection shall be presented to the court before the expiration of the period of two years from the date of marriage (hereinafter in this section referred to as “the specified period”).

(8) The court may, on application made to it, allow the presentation of a petition for divorce within the specified period on it being satisfied that there is no reasonable probability of a reconciliation during the specified period.

(9) If it appears to the court, at the hearing of a petition for divorce presented in pursuance of leave granted under subsection (8) that the leave was obtained by the petitioner by any misrepresentation the court may –

(a) dismiss the petition, without prejudice to any petition which may be brought after the expiration of the specified period upon the same facts, or substantially the same facts, as those proved in support of the dismissed petition; or

(b) if it grants a decree, direct that no application to make the decree absolute shall be made during the specified period.

(10) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which occurred before the expiration of the specified period.

(11) If at any stage of proceedings for divorce it appears to the court that there is a reasonable probability of reconciliation between the parties to the marriage, the court may, without prejudice to any other power, adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such reconciliation.”

Section 2 of the Act includes the following definitions:

“ ‘cruelty’ includes voluntary conduct reprehensible in nature or which is a departure from the normal standards of conjugal kindness on the part of one party to a marriage thereby occasioning injury to the health of the other spouse or a reasonable apprehension of it on the part of that other spouse and being conduct which, after taking due account of all the circumstances of the case, would be considered to be so grave and weighty a nature that should such other spouse be called upon to continue to endure it, would be detrimental to his or her health.

‘desertion’ includes behaviour without cause or excuse on the part of one party to a marriage towards the other spouse whereby it can reasonably be concluded that that party intended through such behaviour to bring the matrimonial consortium to an end.”

Financial Provisions

The financial aspects of a divorce in The Bahamas are set forth primarily in Section 29 of the Bahamas Matrimonial Causes Act (see below).

It is important to note that the ultimate court of appeal for The Bahamas is the (English) Privy Council. In practice the courts in The Bahamas will follow English law closely and are expected to follow English precedents.

"29. (1) It shall be the duty of the court in deciding whether to exercise its powers under section 25(3) or 27(1)(a), (b) or (c) or 28 in relation to a party to a marriage and, if so, in what manner, to have regard to all the circumstances of the case including the following matters that is to say –

(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;

(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;

(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 contribution made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) 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 so to 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 obligations and responsibilities towards the other.

(2) Without prejudice to subsection (3) it shall be the duty of the court in deciding whether to exercise its powers under section 27(1)(d), (e) or (f), (2) or (4) or 28 in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters that is to say –

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(d) the standard of living enjoyed by the family before the breakdown of the marriage;

(e) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1) just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.

(3) It shall be the duty of the court in deciding whether to exercise its powers under section 27(1)(d), (e) or (f), (2) or (4) or 28 against a party to a marriage in favor of a child of the family who is not the child of that party and, if so, in what manner, to have regard (among the circumstances of the case) –

(a) 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 such responsibility and to the length of time for which that party discharged such responsibility;

(b) to whether in assuming and discharging such responsibility that party did so knowing that the child was no his or her own;

(4) Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not a party to the marriage also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under section 25(3) in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under this section.

(5) Without prejudice to subsection (1) where the court grants a divorce on the basis of the ground specified in section 16(1)(d) the court, in exercising the powers referred to in subsection (1), shall have particular regard to the conduct of the petitioner where the evidence discloses that but for the misconduct of the petitioner the parties would not have lived separate and apart."