Order for Second Reading read

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Divorce and Judicial Separation (Miscellaneous Provisions) Bill (No. XXIV of 2010) be read a second time.

Mr Speaker, Sir, this Government has always, as can be gathered from a reading of the Government Programme 2010-2015, laid a lot of emphasis on the need for modernising our judicial and legal system in order to cater for current realities and address whatever lacunas there may be in our laws, which cause unnecessary problems both for the individual members of society and our Court system generally.

One such area of our law, Mr Speaker, Sir, which Government undertook to review and where the need for reform has been felt for a number of years, is the law on divorce.  Indeed, Mr Speaker, Sir, a divorce can be said to be one of the most painful and stressful experiences which a married couple and a family can ever go through.  It affects not only the spouses, but also their children, and the rest of their lives – and very often through no particular fault of any of the spouses.  This is precisely why it is increasingly felt that our law on divorce, as it presently stands (having regard to the grounds on which a petition for divorce may be lodged), worsens the inherent stressful and harmful experience which a divorce can be, instead of ensuring that a marriage is dissolved with dignity and in a manner which is not embarrassing, humiliating and, as far as possible, fair to the spouses and their children, if any.

Mr Speaker, Sir, the grounds on which a divorce petition can presently be lodged are provided for in Article 229 of the Code Civil Mauricien, by virtue of which –“Le divorce peut être prononcé, soit en cas de faute, soit en cas de rupture de la vie commune.”

In relation to ‘faute’, Article 230 provides, that –

“Le divorce peut être demandé par un époux pour des faits imputables à l’autre, lorsque ces faits constituent une violation grave ou renouvelée des devoirs ou obligations du mariage.”

As for ‘rupture de la vie commune’, Article 235 of the Code Civil Mauricien provides as follows –

“Un époux peut demander le divorce, en raison d’une rupture de la vie commune, lorsque les époux vivent séparés de fait depuis cinq ans.”

The grounds of divorce under our law, Mr Speaker, Sir, are, therefore, quite limited.  In fact, this was the view expressed by the Law Reform Commission (LRC), in its Report on ‘Law on Divorce’, dated December 2008, and in which the evolution of our own law and practice, as well as developments and discussions on this area of the law in other jurisdictions have been examined.  The Law Reform Commission was thus of the view that our law on divorce is inadequate, that it must be adapted to the realities of conjugal life, and that the concept of divorce by mutual consent, which had existed in our Civil Code from 1808 to 1884, should be reintroduced.

As is highlighted in the said Report, Mr Speaker, Sir, a good law on divorce must seek to achieve two objectives –

• firstly, it should buttress, rather than undermine, the stability of marriage;
• secondly, if a marriage is dead, and here I quote – “the object of the law should be to afford it a decent burial. It should achieve this in a way that is just to all concerned, including the children as well as the spouses, and which causes them the minimum of embarrassment and humiliation.  Above all, it should seek to take the heat out of the disputes between husband and wife, and certainly not further embitter the relationships between them or between them and their children.  It should not merely bury the marriage, but do so with decency and dignity (…)”

The LRC considered that –

• firstly, insofar as the second objective is concerned, the current law and practice does not fulfil the said objective, and that the need to file a petition for divorce to make allegations most probably causes considerable bitterness and resentment, distress and humiliation. This, Mr Speaker, Sir, can be said to explain the high number of undefended cases of divorce;
• secondly, – “a legal process which facilitates agreement can help couples to reorganise their lives…whereas a process which concentrates on establishing which spouse is the guilty party increases antagonism and discourages constructive solutions. There is thus the need for re-introducing in our law divorce by mutual consent, with certain safeguards, so as not to reduce marriage to the level of a private contract…”;
• thirdly, divorce by mutual consent would spare the parties to divorce proceedings the embarrassment and humiliation to which they are now subjected, and would make the proceedings less of a source of bitterness and recrimination;
• as far as ‘rupture de la vie commune’ is concerned, the LRC was of the view that the period of separation required, which is presently five years, is rather long and may impose unnecessary hardship on people whose marriages have genuinely and irretrievably broken down and who may be in a severe state of distress as a result. The LRC thus considered that a period of two years would be more appropriate.

The Law Reform Commission accordingly proposed two new grounds of divorce.

The first new ground of divorce proposed was divorce by mutual consent, which could be resorted to where both spouses in a marriage agree to a divorce and the consequences thereof, and where they may give a joint notice to the Supreme Court of their intention to divorce by mutual consent (‘consentement mutuel’).

The second new ground proposed was divorce by ‘acceptation du principe de la rupture du marriage’.  Thus, where the spouses agree to a divorce but not the consequences thereof, one or both parties may give notice to the Supreme Court of their intention to divorce on this ground.

The main object of the present Bill, Mr Speaker, Sir, which has been prepared on the basis of the LRC Report on ‘Law on Divorce’, to which I have just referred to, is, therefore, to provide for the following new grounds of divorce, i.e –

• divorce ‘en cas d’acceptation du principe de la rupture du mariage’;
• divorce ‘en cas de consentement mutuel’.

Mr Speaker, Sir, I here congratulate the former Attorney General, under whose tenure of office the Draft Bill was prepared.

Divorce, and more particularly divorce by mutual consent, being a very sensitive issue, whereby the marital life and future of individuals are at stake, Government deemed it fit to circulate the Draft Bill for public consultation, in order to have the views of society at large thereon.  This was done in June 2010.  I wish to thank the hon. Minister of Gender Equality, Child Development and Family Welfare, the Judiciary, the Mauritius Bar Association, the Mauritius Law Society, the Chamber of Notaries, the barristers, the attorneys and the members of the public who made representations and proposals, which were given due consideration in the finalisation of this Bill.

The salient features of the Bill, Mr Speaker, Sir, are that it –

• provides for divorce or judicial separation by mutual consent or acceptance in principle of the breakdown of a marriage;
• reduces, from five to three years, the period of separation required for a divorce or judicial separation on the ground of ‘rupture de la vie commune’;
• simplifies the process following the lodging of a petition;
• provides for the automatic conversion of a provisional decree into a permanent decree three months after the provisional decree has been granted, unless one of the parties objects to same not later than 15 days before the expiry of the three months.

I shall now, Mr Speaker, Sir, indicate the changes and new provisions which the Bill proposes to bring.

The most important amendment which the Bill proposes to bring is found in clause 2(a) of the Bill, by virtue of which the existing Article 229 of the Code Civil Mauricien is repealed and replaced by a new Article 229, which retains divorce on the grounds of ‘faute’ and ‘rupture de la vie commune’, but provides, in addition, for two new grounds of divorce, i.e divorce –

• ‘en cas d’acceptation du principe de la rupture du mariage’, and
• secondly, ‘en cas de consentement mutuel’.

Clause 2(b), for its part, amends Article 235 of the Code Civil Mauricien, which provides for divorce on the ground of ‘rupture de la vie commune’, by replacing the period of five years separation required for this type of divorce by a period of three years.

In view of the new grounds of divorce proposed, clause 2(c) of the Bill further amends the Code Civil Mauricien by introducing three new subsections in ‘Section Première’ of the chapter relating to divorce, which are respectively entitled –

–               du divorce par acceptation du principe de la rupture du mariage (sub section III);

–               du divorce par consentement mutuel (sub section IV);

–               des modifications du fondement d’une demande en divorce (sub section V).

With regard to divorce ‘en cas d’acceptation du principe de la rupture du mariage’, the new Articles 238-1 and 238-2 will provide that, where the parties to a marriage agree to a divorce but not the consequences thereof, one or both parties may give notice to the Supreme Court of the intention to divorce.  It is to be noted that a period of two years should have elapsed since the celebration of the marriage before the parties can seek this type of divorce. Furthermore, the Judge to whom the petition is presented, will have to ensure that all efforts for a reconciliation have been made, and it is only if he is convinced that the parties have of their own free will given their acceptance in principle of the breakdown of the marriage that he will grant the divorce and decide upon the consequences thereof.

As for divorce by mutual consent, the new Articles 238-3 to 238-5 of the new subsection IV will now provide that, where both spouses agree to a divorce and the consequences thereof, they may give joint notice to the Supreme Court of their intention to divorce by mutual consent by submitting to the Judge, for his approval, a ‘convention’ (i.e an agreement) setting out the consequences of the divorce.

It is to be noted that each of the spouses may cause the petition to be lodged by their respective attorney or by an attorney agreed upon by them.

Moreover, just as for divorce ‘en cas d’acceptation du principe de la rupture du mariage’, divorce by mutual consent cannot be sought before a period of 24 months since the celebration of the marriage, and the Judge will again have to ensure that all efforts have been made for a reconciliation.  He will, therefore, grant the divorce and ratify the agreement submitted by the parties only if he is convinced that the parties have freely consented to the divorce.

It is worth stressing, Mr Speaker, Sir, that the Judge may refuse to ratify the agreement and to grant the divorce if he finds that the agreement does not sufficiently provide for the interests of the children or of any of the spouses.  He can also order the deletion or modification of any clause of the agreement which he considers not to be in the interests of the children or of any of the spouses.

Once the divorce is granted and the agreement is ratified, the spouses themselves give effect to the consequences of the divorce, as set out in the agreement.

As for new subsection V, it provides –

–           firstly, in its new Article 238-6, that where a petition for divorce on the ground of ‘faute’ or ‘rupture de la vie commune’ has been lodged, the spouses may, at any stage of the proceedings, make a motion that the divorce be granted on the ground of ‘acceptation du principe de la rupture du mariage’, and

–           secondly, under new Article 238-7, where a petition for divorce on the ground of ‘faute’, ‘rupture de la vie commune’ or ‘acceptation du principe de la rupture du mariage’ has been lodged, the spouses may, at any stage of the proceedings, make a motion that the divorce be granted on the ground of ‘consentement mutual’, by submitting to the Judge a ‘convention’ setting out the consequences of the divorce.

Mr Speaker, Sir, in view of the new grounds of divorce proposed, the provisions relating to ‘mesures provisoires’ (i.e ‘Section Deuxième’ of the chapter relating to divorce) are accordingly amended under clauses 2 (d) and (e) of the Bill by –

–           repealing Article 239 and replacing it by a new Article 239, which provides for the ‘mesures d’urgence’ which a District Magistrate can take following a petition for divorce on the ground of ‘faute’, ‘rupture de la vie commune’ or ‘acceptation du principe de la rupture du mariage’;

–           repealing and replacing Article 240 by a new Article 240, which sets out in more detail the ‘mesures provisoires’ which the Judge in Chambers may make for the well-being of the spouses and the children, until such time as the judgment takes effect.

Article 246, which relates to the date on which a divorce takes effect between the parties, insofar as their property is concerned, is repealed and replaced, under clause 2(f), by a new Article 246 which makes provision, in relation to each of the four grounds of divorce, for the date the divorce will take effect between the parties, as regards their property.

Under clause 2(g) of the Bill, where a divorce is pronounced for ‘acceptation du principe de la rupture du mariage’ or ‘consentement mutuel’, new Articles 253-1 and 253-2 provide for the consequences thereof as far as the ‘donations et avantages’ made or given during the marriage are concerned.

As regards the consequences of a divorce, for the children, under clause 2(h), new Article 262-1 provides that where a divorce is pronounced on the ground of mutual consent, the provisions of the ‘convention’ relating to ‘l’autorité parentale’ may, at the instance of any of the spouses or the Ministère public, be reviewed for ‘motif grave’.

Mr Speaker, Sir, as far as ‘séparation de corps’ is concerned, under clause 2(i) of the Bill, new Articles 280 and 281 are proposed, according to which –

–           judicial separation may be converted into divorce by mutual consent;

–           where judicial separation was pronounced on the ground of mutual consent, it can be converted into  divorce only by mutual consent;

–           by virtue of the conversion, the ground for judicial separation becomes the ground for divorce.

These, Mr Speaker, Sir, were an overview of the amendments being proposed to the Code Civil Mauricien.

Coming to clause 3 of the Bill, Mr Speaker, Sir, in view of the amendments being proposed to the Code Civil Mauricien, a number of procedural amendments are consequently proposed to be brought to the Divorce and Judicial Separation Act 1981.  The proposed amendments, in essence, simplify the process following the lodging of a petition and speed up proceedings for the parties, whilst however maintaining the provision relating to reconciliation.

Clause 3(a) of the Bill, first of all, amends section 5 of the Divorce and Judicial Separation Act to provide for the contents of a petition for divorce or judicial separation under Articles 230, 231, 235, 238-1 or 238-3 of the Code Civil Mauricien.  Thus, a petition for divorce on the ground of ‘acceptation du principe de la rupture du mariage’ has to be accompanied by a statement that the parties accept that the marriage has broken down.  As for divorce by mutual consent, the petition must be accompanied by a copy of the agreement referred to in Article 238-3 of the Code Civil Mauricien.

Under clause 3(b) of the Bill, section 6 of the Act, which provides for service and presentation of petition, is amended to provide for cases where a petition is lodged by the spouses jointly.  New subsection (5), which is proposed to be added in section 6, provides that, for petitions under Article 238-1 or 238-3 of the Code Civil Mauricien, the Judge has to go through the petition in the manner provided for in Article 238-2 or 238-4, as the case may be.

Under clause 3(c) of the Bill, section 7(2) of the Divorce and Judicial Separation Act, which presently provides for the setting down of a petition for preliminary hearing, following the presentation of a petition, where the parties are unlikely to be reconciled, is amended to do away with this procedure.

Section 8 of the Divorce and Judicial Separation Act, which presently deals with preliminary hearings, is accordingly repealed and replaced under clause 3(d) of the Bill by a new section 8 entitled “Further proceedings”, by virtue of which, in cases of divorce petitions on the ground of acceptation du principe de la rupture du mariage or consentement mutuel where a reconciliation is unlikely, or in cases where a petition is not resisted, the Judge has to fix the case for trial on a date determined by him.

On the other hand, Mr Speaker, Sir, where the respondent was not present on the day fixed for presentation of the petition or was present and indicated that the petition is resisted, the Judge will cause the matter to be mentioned on a date determined by him and the respondent may, on that date –

–           admit the contents of the petition;

–                       file his reasons of objection, or

–           file a cross petition.

The case will thereafter be fixed for trial.

Moreover, under clause 3(e) of the Bill, section 9 of the Divorce and Judicial Separation Act is repealed and replaced by a new section 9, which provides that the Court shall grant a provisional decree –

(a)        in the case of a petition for divorce on the ground of acceptation du principe de la rupture du mariage or consentement mutuel, where the Court is satisfied that the divorce should be pronounced;

(b)        in every other case, where the Court is satisfied that the petitioner has established his case or that both parties are to blame.

Clause 3(f), for its part, seeks to bring another important amendment by repealing and replacing the present section 10 of the Divorce and Judicial Separation Act, which deals with “Permanent decree” and which provides for an application to the Court for a provisional decree to be made permanent by a new section 10, which provides for the automatic conversion of a provisional decree into a permanent decree three months after the grant of the provisional decree, unless one of the parties objects to same not later than 15 days before the expiry of the three months.

Section 11 of the Divorce and Judicial Separation Act is, under clause 3(g) of the Bill, amended, to provide for restrictions on provisional decree.  Thus, the Court shall not grant a provisional decree, unless it is satisfied as to the matters provided for in the said petition.

As for clause 3(h) of the Bill, it introduces a new section 11A, which provides for the conversion of a provisional decree into a permanent decree.  Thus, except where a notice of objection is lodged, the Court shall, upon expiry of the period of three months, specified in section 10(1) of the Divorce and Judicial Separation Act, order that the provisional decree be made permanent.  The Registrar then issues a rule to that effect.

As far as decrees of judicial separation are concerned, whilst presently the respondent to a decree of judicial separation may, not earlier than three years after the date of the decree, apply to the Court for the conversion of the decree into a decree of divorce, this period is now reduced to two years, by virtue of the amendment brought to section 12 of the Divorce and Judicial Separation Act, under clause 3(i) of the Bill.

Clause 3(j) of the Bill seeks to amend section 15 of the Divorce and Judicial Separation Act, which provides for amendment of orders and agreements, to also provide for the amendment of agreements made under Article 238-3 of the Code Civil Mauricien.

Finally, under clause 3(k), the last amendment which the Bill proposes to make to the Divorce and Judicial Separation Act, relates to section 21, which is amended to provide for the making of regulations by the Chief Justice.

Mr Speaker, Sir, in view of the procedural amendments to the Divorce and Judicial Separation Act, amendments are being proposed to the Divorce and Judicial Separation Regulations of 1981, under clause 4 of the Bill, to bring them in line with the changes being brought to the Divorce and Judicial Separation Act.

The main amendments are as follows –

Regulation 3, which relates to service of documents where a petition is lodged, is amended to cater for situations where a petition is lodged by the parties jointly, while Regulation 5, which presently provides for the procedure as regards preliminary hearing, is revoked.  As for the Schedule to the Regulations, it is repealed and replaced by a new Schedule.

Finally, Mr Speaker, Sir, by virtue of the transitional provisions provided for in clause 5 of the Bill, any petition for divorce or judicial separation or any application incidental to or consequential upon it pending before the Supreme Court at the commencement of the Divorce and Judicial Separation (Miscellaneous Provisions) Act shall be deemed to have been made under the Act and any such petition or application shall be continued in accordance with the Act.

I have, Mr Speaker, Sir, highlighted the main amendments being proposed in the Bill.  Bearing in mind the way society has evolved, Mr Speaker, Sir, the above amendments are, therefore, being proposed in order to align our existing laws with the current realities of conjugal life and also for the sake of the future of those people whose marital life has regrettably broken down.

Indeed, Mr Speaker, Sir, society has changed, and it is a fact that sometimes sheer incompatibility between individuals, for instance, can make life intolerable not only for both spouses, but also very often for the children born out of the said marriage.  The amendments being brought to the Code Civil Mauricien, Mr Speaker, Sir, are primarily meant to cater for situations where a marriage has broken down, for one reason or the other, and very often without any of the parties being at fault, in order to enable spouses who have definitely made up their mind to get separated, to get a divorce without having to throw accusations at the other spouse, as the case very often is under the present state of our law.

I have to point out, Mr Speaker, Sir, that we have endeavoured to strike a right balance between, on the one hand, preserving the institution of marriage and our values and, on the other hand, accepting the realities of our modern society.

In order to ensure that our law on divorce does not undermine the institution of marriage, the amendments proposed contain certain safeguards, for example –

• the lapse of a period of two years since the celebration of the marriage before divorce on the ground of ‘acceptation du principe de la rupture du mariage’ or ‘consentement mutuel’ may be sought, and
• the conversion of the provisional decree into a permanent decree not before a period of three months, during which, hopefully, the parties would have had the time to further reflect on the implications of their choices.

It is considered, and I am convinced, Mr Speaker, Sir, that our society is honest and mature enough to favourably welcome the amendments proposed.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

 

(7.04 p.m.)

Mr Varma: Mr Speaker, Sir, I would like, first of all, to thank and congratulate Members from both sides of the House who have participated in the debates, and it is good that there is consensus in the House on the Bill.

Mr Speaker, Sir, I will, first of all, reply to what the hon. Second Member for Constituency No. 10 has stated in his speech.

As regards the property issues and issues relating to children, Mr Speaker, Sir, I will refer the House to section 238 (2) on ‘acceptation du principe de la rupture du mariage’, where it will be a requirement that le juge prononce le divorce et statue sur ses conséquences.  As far as section 283 is concerned, divorce by mutual consent, la convention réglant les conséquences du divorce is clearly stated.

Concerning the other point raised by the hon. Member on revision of disposition de la convention relative à l’exercice de l’autorité parentale only for motif grave, we should leave that to the appreciation of the court, Mr Speaker, Sir.  In practice, matters relating to best interest of the child are likely to be considered by the court as grave enough to justify revision.  There was a point also raised by hon. Seetaram on child psychologist and other support mechanism, and this point was raised by hon. Baloomoody as well.

Mr Speaker, Sir, we are in the process of working on a Family Court Bill, and we will need to consult different stakeholders before finalising this piece of legislation.  I do agree with the point raised by the hon. Third Member for Constituency No. 1 that we need to have a Family Court.  Now we have a division of the Supreme Court, and I will request hon. Members to be patient.  We are working on a draft Bill.

Just to reply to what hon. Baloomoody stated on consent, Article 238(2) clearly states volonté libre et éclairée.  This should be read as opposed to volonté réelle and le juge doit avoir acquis la conviction que la volonté est réelle.  The law provides that the Judge has to be satisfied to the highest standard and not just have a reasonable belief that the volonté est réelle, and that there is no coercion or pressure.  Therefore, the Judge will assess and put such questions, as may be required, and may even question each spouse separately, then both together.

As far as the point raised on legal aid by the hon. Third Member for Constituency No. 1 is concerned, the hon. Member will appreciate that we have circulated a green paper on the reforms to be brought to the legal aid system, and the public was invited to give their comments.  In fact, tomorrow and the day after tomorrow, I am having consultations with the Bar Council, the Law Society and the Chambre des notaires precisely on the reforms to be brought to the legal aid system.  I will request again the hon. Member and other Members of the House to be patient, because we are currently working on the reforms to be brought to the Legal Aid Act.

The other point being raised on the common attorney, Mr Speaker, Sir, section 238(3) states –

« La demande peut être logée, soit par les avoués respectifs des parties, soit par un avoué choisi d’un commun accord. »

It is clear that the discretion is there.  The point being raised is precisely as far as legal aid is concerned, but I have informed the House that we are working on the reforms to the Legal Aid Act.

Mr Speaker, Sir, as far as the point raised about the institution of marriage is concerned, I stated in my speech that we have tried to strike the right balance in preparing this piece of legislation, and I clearly stated that our law on divorce does not undermine the institution of marriage.

The Probation Report, Mr Speaker, Sir, should be compulsory in some cases to see if the volonté is réelle.  It should be left to the discretion of the Judge, who has to enquire and ascertain if the volonté is réelle.  The Probation Report may not be necessary in all cases, Mr Speaker, Sir.

As far as the joint autorité parentale is concerned, this is a matter which we will have to discuss.

These are the points which have been raised by the hon. Members of the House, Mr Speaker, Sir, to most of which I have replied.

Question put and agreed to.

Bill read a second time and committed.