Getting adviceThe prospect of divorce action can be daunting, but the process need not be difficult with the right professional advice. Your Bahamian divorce attorney is there to guide you through the process, steer you clear of the legal pitfalls and offer sensitive but independent advice.
Choosing an attorneyBecause a divorce can raise sensitive and personal issues, it is important to choose an attorney who makes you feel comfortable. Choose someone you find approachable and whose advice you feel you understand.
You may find it helpful to speak to a couple of attorneys before you decide who to appoint.
How an attorney can helpIt is your attorney's responsibility to:
- explain the divorce process to you;
- start the divorce action for you; and
- once it is under way, keep you informed of any developments.
If you are at risk from domestic abuse at any stage, your attorney will make it a priority to discuss all possible ways of keeping you and your children safe.
What your attorney will need to knowTo get a thorough understanding of your circumstances, your attorney will ask you for a variety of details and documents. These could include:
- the reasons you want a divorce;
- if you are living apart from your husband or wife and when you separated;
- the names and ages of any children who are part of the family;
- the children's current and future living arrangements;
- the current contact arrangements between parents and children;
- a list of your assets, savings, income and pension arrangements, and those of your husband or wife;
- details of any ongoing problems such as substance abuse, debts and so on;
- details of any domestic abuse;
- your marriage certificate; and
- any other relevant documents, names and dates.
Grounds for divorceYou will be granted a divorce if you can demonstrate that your marriage is beyond repair because:
- your husband or wife has committed adultery;
- your husband or wife has committed an act or acts of cruelty;
- your husband or wife deserted you for a continuous period of at least two years;
- you have lived separate and apart from your husband or wife for a continuous period of five years or more; or
- your husband or wife has, since your marriage committed an act of homosexuality or sodomy or has had sexual relations with an animal.
If a divorce decree is against your religion, your attorney can give you advice about other forms of separation.
The divorce processThe legal formality of getting a divorce is a relatively straightforward process. What is generally much less straightforward is sorting out the practical issues associated with a divorce, such as where each person will live, who gets what, and arrangements for any children. Before agreeing matters with your husband or wife, it is wise to take advice from an attorney about your rights and the options available to you.
The legal terms used in divorceIn court and in legal documents, the person applying for the divorce is known as 'the petitioner', and the person they are divorcing is 'the respondent'.
Initial letter to the respondentIf you are applying for the divorce, your attorney will usually start the process by writing a letter to your husband or wife to tell them that you are planning to start divorce action. This letter will also recommend that your husband or wife gets independent legal advice if they have not done so already.
Divorce petitionYour attorney will then send the divorce petition to the court. The petition sets out whether you will be asking your husband or wife to pay for the costs of the divorce or to provide some other sort of financial support for you or your children. The court will send a copy of the petition to your husband or wife for their attorney to reply.
Once your husband or wife or their attorney has replied to the petition, you will need to confirm your intention to go ahead with the divorce application by making a sworn statement or 'affidavit'. Your application is then lodged with the court. If your husband or wife does not reply or cannot be found, your attorney will tell you the methods for overcoming this.
Decree nisiOnce the court is satisfied that you should have a divorce, it sets a date and time for the judge to pronounce the 'decree nisi'. You do not need to go to court for this. It is simply a statement from the court that the divorce can go ahead and the divorce papers are approved. You are not actually divorced at this stage.
If at this point you and your husband or wife have not agreed who should pay the legal costs of the divorce, the judge pronouncing the decree nisi will make the decision for you.
Decree absoluteAfter the time specified in the decree nisi has elapsed, the person applying for the divorce can have the divorce made 'absolute'. This legally dissolves the marriage. However, you are usually better to wait until financial matters ('ancillary relief') have been settled before finalising your divorce in this way.
DisagreementsDisagreements generally relate to:
- property; or
- contact with children.
If you have disagreements about issues related to the divorce, such as finances and access to children, you should attend a meeting to find out if you are suitable to go through mediation before you apply for a court order. Mediation is where you and your husband or wife work with someone who is trained to help people sort out disagreements between themselves. Your attorney will be able to advise you on this, and help you to arrange the meeting.
Providing informationIt is particularly important for you to provide your attorney with full and accurate information about your financial circumstances.
A common problem and source of disagreements is where the husband or wife fails to give details of all their assets. This slows everything down and, if the matter cannot be settled out of court, that person may have to pay court costs.
Expert witnessesIf you and your husband or wife cannot agree over the value of property or assets, your attorney may suggest using an expert witness to provide an independent valuation. In financial matters, this is often a single witness approved by both partners and the court.
Disagreements settled by the courtIf you and your husband or wife cannot solve a disagreement out of court, you can apply for the court to settle the matter. The court will do all it can to encourage you to negotiate an agreement between you, but failing this the judge will make a decision. Usually the judge will issue a 'court order' to make their decision official.
ChildrenIn all matters relating to children, the children's welfare comes before anything else. Your attorney will:
- emphasise how co-operating with your husband or wife will benefit your children;
- warn against the dangers of encouraging children to take sides;
- encourage you to consider what you plan to tell your children about the separation;
- make you aware of alternatives to court proceedings, such as mediation;
- discourage court action as a way of settling disagreements, except as a 'last resort'; and
- treat all matters relating to children as confidential.
There to helpWhatever your circumstances, a family law attorney has the knowledge and experience to represent your interests and those of your children.
CostsCharges can vary between attorneys and will depend on the difficulty of the case. Before you decide who to appoint, check with a few attorneys to find out how much they charge.
Price is not the only issue, however, particularly for a sensitive divorce case. It is more important to find an attorney who is approachable and sympathetic, and whose advice you understand.
This Memorandum is for your information only and nothing contained in this Memorandum is intended to constitute a legal opinion. If you require any detailed advice, you can e-mail a Bahamian divorce attorney by clicking here