About Honor Desmond-Tetlow
Ms. Desmond-Tetlow is a senior associate in the firm’s litigation group and advises on all areas of matrimonial and family law and in general civil litigation. She is also a trained mediator and collaborative law practitioner.
Honor Desmond-Tetlow’s full profile on mjm.bm.
In this article I will address some of the general principles of Bermuda divorce law and also take a look at some misconceptions which are fairly widely held. At the outset, however, I must stress that time and space will not permit a very detailed analysis and I would counsel anyone engaged in, or considering, a divorce to seek the advices of an experienced matrimonial lawyer.
Firstly, let’s look at jurisdiction. Sometimes clients are confused about their right to initiate a divorce in Bermuda. Ours is a cosmopolitan population and many clients will have been married overseas, leading some of them to believe that any divorce must take place in their “home” jurisdiction. Not so. If either party to the marriage is “domiciled’ in Bermuda (in effect, Bermuda is home) or has been resident continuously in Bermuda for one year or more, our courts can entertain a divorce petition.
The next question is how long have the parties been married? Generally speaking, our courts will not consider a divorce application unless the parties have been married for at least 3 years. In the United Kingdom (on whose laws ours are firmly based), that requirement has been changed to 1 year. However, unlike in the UK, ours is not a complete and total ban. If it can be proved that someone will suffer exceptional hardship if an early divorce is not granted, or has been subject to exceptional depravity, then an exception can be made. Each case will depend on its own facts, but something beyond the normal anguish of a marriage breakdown is required. My experience is that, in recent times, the court is willing to consider these applications more often than was previously the case.
OK… so, you have been living in Bermuda and you are married more than 3 years, what else is required? This is where the fallacy of “irreconcilable differences” comes to life. This catchall phrase appears to be a very common one in US law and many clients presume it applies to Bermuda also. It does not. Instead, we need to establish “irretrievable breakdown” of the marriage and this is not just a matter of semantics. Our legislation provides for 5 very specific ways of satisfying the court that a marriage has broken down irretrievably. They are, in descending order of popularity:
- The couple have been separated (physically) for 2 years or more and each consents to the divorce proceeding.
- One party establishes that the other has behaved unreasonably and sets out the details (particulars) of that unreasonable behaviour in the divorce petition.
- One party proceeds on the basis that the other has committed adultery and names the “third party” in the divorce petition.
- The applicant has been deserted by the other for 2 years or more.
- The parties have been separated for at least 5 years, in which case the consent of the non-petitioning party is not required.
Once the petition, on any of these five bases, has been filed and the other side or his/her lawyer has received the Petition and accompanying documents, the matter can proceed to court. Before we leave this, however, note the reference to “accompanying documents” with a divorce petition.
If there are children, details of the provisions made for them, i.e. where they live, who takes care of them and who is supporting them are carefully considered by the court. A decree of divorce will not be granted unless the court is satisfied with the arrangements made for the children. Child care laws and child welfare laws are outside the scope of this article, but a basic proviso in divorce/and family law is that the welfare of the child is of paramount importance.
Finally, before we turn to some of the thorny issues that tend to arise upon a divorce, one further common misconception is that the divorce decree itself will ‘arrive in the post’, as is generally the case in the UK. In Bermuda, we retain the requirement that the divorce petitioner’s lawyer must appear in court to apply for a divorce. In keeping with the times, hearings are increasingly speedy and all contentious matters are adjourned for later consideration.
And what are the usual contentious matters? Primarily, they are the division of assets, the payment of spousal/child support and child custody/access issues.
When considering the division of assets upon divorce, I cannot stress firmly and strongly enough the degree to which each case turns upon its own individual facts.
Having said that, it should be noted that the year 2000, in a landmark House of Lords decision, which applies equally to Bermuda, brought what is often called a ‘seismic change’ in the law governing the division of assets upon divorce, The guidelines set down by the court at that time, of “needs, sharing and compensation”, led some practitioners to believe, for a period, that assets would be divided thereafter on a 50/50 basis… but as the law has developed, it is not quite that simple. The guiding principle behind the initial decision was the recognition of the many ways in which individuals contribute to a functioning family unit. Recognition was given, in particular, to the disproportionate role often taken on by mothers in raising children and the fallout effect on levels of earnings.
But other factors remain relevant; the length of the marriage, the health of the parties, their likely income and assets now and in the future, whether any assets were ‘brought into’ the marriage, inherited assets, whether one party had outstanding abilities/made an exceptional contribution, pensions etc., just to name a few. What is certain is that all assets must be disclosed and considered and only then can the process of division begin. Interestingly, in a recent UK survey of disputed cases where there were ‘surplus’ assets, i.e. more than was needed for the housing and other immediate needs of the parties, very few resulted in a 50/50 divide.
So what happens with spousal maintenance? (more commonly known as alimony in the US). A 1984 amendment to the UK Matrimonial legislation underpinned the importance of what is known as a “clean break” i.e division of capital in such a way that former spouses do not remain tied to each other through the payment of ongoing maintenance. While we in Bermuda have not had that change to our legislation, a cursory examination of our decided cases will show that our courts strongly favour the same principle. Of course, there are times when parties have limited capital assets while one of them may be a high earner/potential earner. In such cases, fairness may well dictate the payment of maintenance, at least for an adjustment period.
And what of child maintenance? Realistically, the level of support required will depend on the needs of the child, which in turn will depend on the lifestyle of the family, prior to divorce. A family which engages a fulltime live-in child minder, for example, will require far greater maintenance contributions. And while the court is not prepared to conduct exact ‘mathematical calculations’ according to the respective earnings of the two parents, the higher earning parent can expect to make the greater contribution. Maintenance for a child is payable until school leaving age in the first instance (now 18) and can readily be extended while a child remains in full time third level education or training.
The last issue I will touch upon is that of child custody/access. In keeping with the modern father’s increased involvement in his children’s’ lives, the most usual order these days is one of joint custody to both parents. In the event that the relationship between the former spouses is a relatively good one, the parties may well agree to share “care and control” as well. In practise, this will mean that the children will spend substantial periods of time at each parent’s house. Absent such agreement, the more likely order is that one parent has care and control and the other has defined access. As in the divorce arena itself, the court will be guided by what it considers the child’s best interests. It should be noted however that not having ‘care and control’ does not in any way exclude a parent from having the right to partake in all major decisions in the child’s life. This is one topic where we have adopted legislation which has its origin in a number of commonwealth jurisdictions and is not just a mirror image of UK legislation and this continues to be a developing area of law.
In conclusion, divorce law, like the relationships it seeks to govern, is multi-faceted and rarely fully predictable. Much will depend on each individual’s personal circumstances. Parameters are provided by our legislation and our case law, but these parameters shift with time and changing social values, and so continued vigilance to these changes is necessary and will, no doubt, continue to be so.