Divorce PDF Print E-mail

What is Divorce?

Divorce is the legal way of ending your marriage if you were married in a civil or church ceremony. You may either be separated or still living with your husband when you apply for a divorce.

The decision to apply for a divorce should not be made easily. A divorce should only be applied for if you are sure that this is the best thing for you to do.

Both separation and divorce can be a painful and emotionally tiring experience for both you and your children, no matter who asked for the divorce. Having to deal with new legal and money matters as well as separation at the same time is very difficult. Try to decide after giving this careful thought and getting legal advice and counselling .

Try to avoid using the children as weapons against your husband as in the long run you will do more harm than good. Although it may be difficult if your husband is violent, try to make decisions without fighting with him. If you fear him let your lawyer or advisor or the court talk with him.

Remember that if you have tried reconciliation and it has not worked, no person nor the Court can force you to return to your husband.

At the same time no person can force you to separate or divorce if you wish to reconcile with your husband.

Separation

If you want to separate from your husband you can do this at any time. Marriage does not mean that you are forced to live with your husband until you can get a divorce.

You do not need to ask the Court for an order to be able to separate from your husband. This is because you already have the right to live separately from your husband if you wish,

When can I get a Divorce?

You can normally ask the Court for a divorce if you have been married for two years or more. It is possible to get a divorce if you have been married for less than two years but it is very unusual.

The Court does not deal with custom divorces. If you want a divorce from a custom marriage you must follow the custom way of doing this. The District Registrar should be told about any custom divorces.

How do I get a Divorce?

You will need to see a lawyer to prepare the papers for you. If your husband agrees to everything in the divorce then you can usually go to the Magistrate's Court without needing a lawyer with you.

If your husband does not agree then your case will need to go to the Supreme Court. In this Court you will usually need a lawyer to represent you (to speak for you).

You can ask one of the organisations listed on the back page to help you find a lawyer.

Grounds for Divorce

The first thing you must do is to see if you have any grounds for doing so. Grounds means the reason you give to the Court for why you want a divorce. What grounds you can use depend on how long you have been married.

If you have been married for less than 2 years you can only divorce using the following grounds:

    exceptional hardship,

or

    exceptional depravity

Exceptional hardship means that you will suffer unbearably if you are not given a divorce. For example if you are not earning money and need to remarry in order to provide for yourself and your children this might be exceptional hardship.

Exceptional depravity would mean that your husband has done something extremely morally wrong. This might include such things as selling your children for sex or having sex with them himself.

If you have been married for less than two years, and neither of these grounds apply to you then you may not be able to get a divorce, this does not mean that you have to stay with your husband. Marriage does not mean that you are forced to live with your husband until you get a divorce. The Constitution, the supreme Law of Vanuatu says that every person has the freedom to choose where they live.

If your husband has assaulted (hit) you and is likely to do so again then you can ask the Court to make an order to stop him assaulting you, from coming near you or going to your home. You can find out more on this in our leaflet on Domestic Violence.

If you have been married for longer than 2 years you may ask for a divorce on any of the following grounds:

    adultery by your husband
    your husband's conviction for rape or an unnatural offence since you have been married
    desertion by your husband for 3 years or longer
    persistent cruelty towards you by your husband
    unsoundness of mind or insanity of your husband for at least five years, and when recovery is unlikely
    your husband is presumed (or is assumed because of his absence) to be dead

ADULTERY

Adultery means that your husband has had sex with another woman since you got married.

To prove adultery you will either need to obtain enough independent evidence to prove that your husband has had sexual intercourse with another woman, or get him or her to tell the truth in Court.

You may need to bring a witness to Court. The witness must be able to say that he or she heard your husband admit the adultery, or that they saw your husband and the other woman in a situation that does not have a reasonable explanation, such as them going into a hotel to spend the night together.

It is not enough to tell the Court you heard a rumour or gossip that your husband has had sexual intercourse with another woman.

What if I am the one who commits adultery?

If you have committed adultery you cannot use this as a reason to ask for a divorce. Only your husband can ask the court for a divorce on the grounds of your adultery.

If you are the one asking for a divorce, on any grounds, and you have committed adultery you must be honest and say so. If you are honest about this the Court will not hold it against you. It will still usually grant you a divorce.

If you have committed adultery it should not affect your right to claim custody of your children.

If you are told this do not believe it or accept it.

RAPE

If your husband has been convicted of rape, or some other unnatural offence since you were married then you have grounds to divorce him. The law does not say what offences are "unnatural" but this is likely to include incest.

DESERTION

Desertion means that either you or your husband has left your marital home. There are two different types of desertion.

The first is called simple desertion. This is when your husband leaves you. With simple desertion you must prove the following things before the Court will accept that you have been deserted:

    that you and your husband are living apart and have been for at least three years
    your husband intends to remain separated from you
    you do not agree to the separation
    you did not cause the separation

You can do this by bringing neighbours or relatives to the Court who can say that they know through their own personal knowledge that you have not been living with your husband for 3 years or longer.

If you try to reconcile with your husband and live with him again for 3 months or longer, then you must live apart for another 3 years to use this as a ground for divorce.

Constructive desertion is when your husband has made your life so difficult that you have been forced to leave him and move out of your home. To prove constructive desertion you will need witnesses, such as neighbours or relatives, who can say from their own personal knowledge why you were forced to leave.

As with simple desertion, you must have been living apart from your husband for at least 3 years since you left him to use this as grounds for divorce. If you try a reconciliation, then this must not last for longer than 3 months or you will have to wait for another 3 years to apply for a divorce.

PERSISTENT CRUELTY

Cruelty can mean physical or mental cruelty. Persistent means that it keeps on happening a number of times.

Beatings, assaults and other forms of violence are physical cruelty. If you have reported any beatings or other violence to the Police, you should get a written report from the Police which you can show to the court as evidence. If your husband has been convicted of eating you then there will be a criminal record of this even if he was not sent to prison. If the police took no action when you reported it to them, there will still be a written police statement recording your complaints and this will help you.

If you have seen the doctor about your injuries then you should get a written medical report. Although they will only prove that you were injured and not who injured you, medical reports are also good evidence.

Never accept that your husband has a right to beat you. Wife beating is a crime.

You will also need to bring to court witnesses who can say that they know from their own personal knowledge that your husband has been cruel to you. This may mean that they saw the beating or heard your crying and screaming. As most acts of cruelty happen when there is no-one else around, you can also bring witnesses who saw your injuries and your emotional upset immediately after you were beaten.

Mental cruelty can include your husband swearing at you, abusing you, mentally torturing you, saying that you are stupid or useless, being cruel to the children in front of you, or generally being a bad husband or parent. If you are threatened with violence or live in fear of your husband being violent to you, this may also amount to mental cruelty. It is easier to prove mental cruelty if there has been physical cruelty as well.

If you cannot prove your husband's cruelty then you can leave him and wait for three years to apply for constructive desertion. You could try to show that your husband's cruel behaviour caused you to desert him.

MENTAL ILLNESS

To use this ground a doctor must have said that your husband is of unsound mind and unlikely to get better.

PRESUMPTION OF DEATH

If your husband has left you for 7 years or more, and during this time you have heard nothing from him or about him, then court can grant you a divorce because he is presumed to be dead.

I don't have grounds for Divorce

If you cannot prove any of these grounds for divorce you can separate, wait for 3 years and apply for a divorce. You can try to show that your husband's unreasonable behaviour caused you to desert him.

Although unreasonable behaviour is not itself a ground for divorce this would allow you to apply on the ground of constructive desertion. If you think that you have no ground see a lawyer. If you are desperate there may be a way of getting a divorce that you haven't thought about.

I do have grounds for Divorce

If one of these grounds does apply to your marriage then the next step is get help to prepare the written papers for you to file a petition. This is the document setting out the grounds for your divorce which you give to the Court.

A lawyer can do this for you.

You file the petition at the Court nearest to where you e or nearest to where your husband lives.

You will need several copies of the petition. Each copy Of the petition must be taken to the court and sworn to, usually in front of the Magistrate. After all the copies must be sworn and given a stamp before they can be handed out.

The Petition

Because you are the one who wrote out the petition for divorce you are known as the "petitioner". As well as the Court you must also give a copy of the petition to your husband who is known as the "respondent". If you are divorcing your husband because of his adultery, then the other woman he is having sex with is called the "co-respondent" and she must also be given a copy. If you are scared of your husband you do not have to give him the petition yourself. You can ask a friend to do this for you.

Orders

At the same time you ask for a divorce you can also ask the court to make orders for custody and access to your children, maintenance for you and the children, and a matrimonial property settlement. For more information on these things look at the leaflets we have written about the. If you have already got a maintenance order when you apply for a divorce that order will stop and a new order under the divorce laws will be granted. Make sure that you ask for new orders.

The Court

When your case comes to the Court you will have to prove that you have the grounds for divorce which you have written in your petition. When you do this the Court will grant you a Decree Nisi. This decree does not mean that your married is ended. The Court will wait for 3 months before it grants you a Decree Absolute. It is sometimes possible in special situations to ask the Court to make you wait for less than 3 months, if you want to go overseas or to remarry more quickly.

This decree means that your marriage is over, and you are free to marry again if you wish. The Decree Absolute will not be granted until all matters relating to your children are settled, for instance if you and your husband cannot agree on who should take care of them.

 

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