A paragraph in the Throne Speech in November of 2013 heralded a proposed change to the Children Act, 1998.
The need to incorporate family mediation into the Act was recognized as a prerequisite for co-parenting orders rather than arising only as a result of a parent’s non-compliance with some existing order. This proposed move to formalize the requirement for mediation brings Bermuda into line with the current practice in many jurisdictions.
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.
“Remember to take your SCARF into negotiations” may seem like odd advice. It isn’t. SCARF, an acronym for Status, Certainty, Autonomy, Relatedness and Fairness, should not be overlooked and should be taken into account when entering into negotiations.
“Status” refers to the need to be respected and treated as an equal;
“Certainty” to the need for some predictability and security;
“Autonomy” the sense of having choices and some control;
“Relatedness” the need for collegiality and a sense of belonging/trust; and