Divorce Law in Gibraltar: recent changes to divorce legislation and financial remedies on divorce

Divorce

Divorce Law in Gibraltar: recent changes to divorce legislation and financial remedies on divorce

The Matrimonial Causes (Amendment Act) 2019 and the Family Proceedings (Matrimonial Causes) (Amendment) Rules 2019 came into force on 15th August 2019. The main object being to provide a more “harmonious” divorce procedure by legislating for non-fault divorces. This article considers the main changes as a result of the legislation as well as providing an overview of divorce procedure.

When can spouses get divorced in Gibraltar?

A party to a marriage can apply for a divorce provided they have been married for at least one year and the Supreme Court of Gibraltar has jurisdiction.    In exceptional circumstances, the Court can allow a petition to proceed during the first year of marriage if it can be shown that the case is one of exceptional hardship suffered by the Petitioner or one of exceptional depravity on the part of the Respondent.  However, such cases are rare.

What are the grounds for divorce?

There is now only one ground for divorce namely that the marriage has broken down irretrievably. Previously, the Petitioner had to prove adultery, unreasonable behavior, desertion, two years’ separation with consent, or three years’ separation in order to show the marriage had broken down irretrievably. The recent changes in the legislation effectively provide for “no-fault” divorces and do away with contested divorces.

How long does the divorce process take and what is the process?

The divorce itself usually takes about 7-9 months to complete albeit it does not follow that any financial disputes or disputes in relation to children will be resolved or adjudicated on by the Court within this timeframe.

To start the divorce process, the Petitioner files a divorce petition accompanied by the prescribed statement of irretrievable breakdown and other required documents including the statement of arrangements for children (if applicable).  The Petition is then issued by the Supreme Court and served on the opposing spousal party, the Respondent.  Following service, the Respondent needs to file/serve an Acknowledgment of Service within a prescribed time frame.

The matter is then fixed for a Preliminary Hearing which the parties need to attend in person.  At this hearing the Court needs to be satisfied that the relevant procedural requirements have been complied with and then fixes a subsequent date for the pronouncement of the Decree Nisi (conditional order for divorce).

The marriage does not legally come to an end until after the Court has granted the Decree Absolute (the final order for divorce).  Save for exceptional circumstances, the latter can only be applied for by the Petitioner 6 months after the date of the Decree Nisi.  The purpose of this 6-month period is to give the parties a “cooling off” period after the pronouncement of the Decree Nisi.  Previously this period was 6 weeks but this has been altered given the no-fault divorce procedure.  It is also open to the Respondent to apply for the Decree Absolute if the Petitioner does not apply for it within 9 months of the date of the Decree Nisi.

What other changes have been implemented?

Provision has also been made for financial relief proceedings to be brought in Gibraltar following an overseas divorce, in cases where the divorce, annulment or legal separation is recognised as valid in Gibraltar. This enables the Court locally to make financial orders locally.

How are finances or child arrangements usually dealt with in divorce proceedings?

Parties are usually encouraged to try to resolve matters amicably by negotiating the terms of a financial agreement to deal with issues such as capital division, spousal/child maintenance as well as arrangements for children (if applicable).  The parties can also reflect any agreed financial arrangements by entering a consent order in the divorce proceedings.

If the parties are not able to reach agreement in relation to financial matters or in relation to the child related matters then it is open to either to make an application for financial relief or for appropriate orders in respect of the children under the Children Act e.g. in relation to residence or contact arrangements.

What is the process in financial relief proceedings?

There are 5 stages:

I. The Application

Either the Petitioner or a Respondent must file/serve an application by issuing an application for financial relief in the prescribed Form M10. The Court will then fix the First Appointment 12-16 weeks after the filing of the M10.

II. Disclosure

Prior to the First Appointment (and assuming the parties have not already done so prior to the Preliminary Hearing), the parties need to exchange disclosure in the prescribed Form-M5. This is an extensive form which requires disclosure of capital and income as well as future income and capital needs/requirements. The M5 form must be accompanied with certain documentary evidence including bank statements and company accounts.

III. The Questionnaire

After the exchange of disclosure and prior to the First Appointment, the parties can raise questions on the other’s Form-M5.  If a party objects to answering a particular question then this will be considered by the Court at the First Appointment.

IV. The First Appointment

This is usually the first Court hearing in financial relief proceedings.  At the appointment, the Court generally case manages the dispute, gives necessary directions for disclosure, the provision of further information, the answering of the questionnaires, the appointment of experts including to value properties and assets (e.g. company shareholdings) (if necessary) and directions to final hearing. The latter can include directions for a pre-trial review or further case management if the Court considers this appropriate.

V. Final Hearing

In the absence of settlement then necessarily the case will proceed to final hearing.  The latter is a contested hearing where each party usually gives live evidence and is subject to cross examination.  Following the conclusion of the hearing, the Court then decides what orders to make.  The Court has a wide discretion to make a range of different orders including a property adjustment order (e.g. the transfer of the former matrimonial home from one spouse to another); a lump sum order (payment of a capital sum by one party to the other); maintenance from one spouse to another (necessarily the Court will need to consider how long any such maintenance should be paid for if it is minded to make such an order).  The Court can also make orders for child maintenance.  What orders are appropriate will depend on the individual circumstances of a case and each party is obliged to make an open offer to settle in accordance with the Family Proceedings (Matrimonial Causes) Rules prior to any final hearing.  The general rule is that each party will usually pay their own costs and costs are therefore not normally recoverable.

By Charles Simpson and Joanna Baglietto, Dispute Resolution Team, Triay & Triay

This article first appeared in the May/June/July 2020 edition of the Gibraltar International Magazine: https://www.gibraltarfinance.com/wp-content/uploads/issues/GIF-May-June-July-20/mobile/index.html#p=9