Once you have decided that your marriage has irretrievably broken down, and that marital life is no longer possible or non-existent between you and your spouse, and you want to get a divorce, you need to retain the services of an Attorney at Law (Avoué) to draft and lodge the paper work involved in getting a divorce, and a Barrister at Law (Avocat) to represent you in court. Some lawyers specialise in family law and deal with divorce cases on a daily basis. Once the divorce petition is lodge, you will be given a date to attend court at the Supreme Court of Mauritius (Family Division) situated at the 5th Floor, New Court House Building, Pope Hennessy Street, Port Louis for your legal representative to present the petition (called the Presentation) to the Judge. The Judge may ask the parties some questions and attempt to find an agreement. If the Judge is satisfied that reconciliation is not possible, His Lordship will fix a date for the hearing of the case (called the Merits). You have to appear in person on all occasions. After hearing the case, the Judge will pronounce a temporary divorce decree (“vinculo matrimonii”). Thereafter, if within a period of three (3) months, the parties have not reconciled and resumed matrimonial life, the Judge will pronounce a permanent decree of divorce which will be final.

What are the Documents Needed?

• A recent copy of your Marriage Certificate (issued within 3 months),
• A recent copy of your Birth Certificate,
• Your National Identity Card,
• If divorce by mutual consent, both spouses will need to provide the above and you will also have to make an agreement which will govern the effects and consequences of the divorce to which you will both have to consent freely to and sign, and
• A recent copy of the Birth Certificate of any child(ren) born of the marriage.

What are the Types of Divorce available in Mauritius?

According to Article 229 of the Mauritian Civil Code (“Code Civil Mauricien”), divorce may be pronounced-

(1) in the case of fault (“faute”);

(2) in the event of a breach of common conjugal/marital life (“rupture de la vie commune”);

(3) if the principle of rupture of the marriage is accepted (“acceptation du principe de la rupture du mariage”); or

(4) in the case of mutual consent (“consentement mutuel”).

I – DIVORCE FOR FAULT (“DIVORCE POUR FAUTE”)

Article 230. Divorce may be requested by a spouse for acts attributable to the other, where such acts constitute a serious or renewed violation of the duties or obligations of the marriage.

Article 231. Divorce may be requested by a spouse when the other has been sentenced to a common criminal penalty of at least five (5) years of criminal servitude.

Article 232. The reconciliation of the spouses since the alleged facts prevents them from invoking them as a cause of divorce.

The judge then declares the application inadmissible. A new application may, however, be made on account of facts which have occurred or have been discovered since the reconciliation, and the former facts may then be recalled in support of this new application.

The temporary maintenance or resumption of communal life is not regarded as a reconciliation if it results only from the necessity or conciliation effort or the needs of the education of the children.

Article 233. The faults of the spouse who initiated the divorce do not prevent the examination of his application;

They may, however, deprive the spouse of the character of gravity which would have made him a cause of divorce.

These mistakes may also be invoked by the other spouse in support of a counterclaim in divorce. If both applications are allowed, the divorce is pronounced to the shared wrongs.

Article 234. Even in the absence of a counterclaim, divorce may be pronounced on the joint wrongs of the two spouses if the debates reveal wrongs to be borne by one or the other.

II – DIVORCE FOR BREACH OF COMMON LIFE (“DIVORCE POUR RUPTURE DE LA VIE COMMUNE”)

Article 235. A spouse may apply for a divorce on account of a breakdown in the marital/conjugal life of the spouse when the spouses have been separated in fact for three (3) years. 

Article 236. A spouse applying for a divorce for breach of common life shall bear all the burdens. In his application he must specify the means by which he will perform his obligations towards his spouse and children.

Article 237. If it is established that the means specified by the applicant are insufficient to preserve the material interests of the other spouse and the common children, the judge shall reject the application.

Article 238. The breach of the common life may be invoked as a cause of divorce only by the spouse who makes the initial application, called the principal claim.

The other spouse can then file an application, called a counterclaim, claiming the wrongs (fautes) of the person who took the initiative. This counterclaim can only be for divorce and not separation of body (“separation de corps”). If the judge admits it, he rejects the main claim and pronounces the divorce on the wrongdoing of the spouse who took the initiative.

III – DIVORCE BY ACCEPTANCE OF THE PRINCIPLE OF RUPTURE OF MARRIAGE (“DIVORCE PAR ACCEPTATION DU PRINCIPE DE LA RUPTURE DU MARIAGE”) 

Article 238-1. Divorce may be requested by one or both of the spouses when they accept the principle of marriage breakdown regardless of the facts giving rise to the marriage but not of its effects or consequences. Divorce by acceptance of the principle of marriage breakdown may not be requested during the first twenty-four (24) months of the marriage.

Article 238-2. The judge to whom the application is made examines it with each of the spouses and then brings them together.

He makes sure that every effort has been made to try to reconcile them.

If he has become convinced that the will of each spouse is real and that each of them has freely given his consent, the judge pronounces the divorce and decides on its consequences.

IV – DIVORCE BY MUTUAL CONSENT (“DIVORCE PAR CONSENTEMENT MUTUEL”)

Article 238-3. Divorce may be requested jointly by the spouses when they agree on the breakdown of the marriage and its effects by submitting an agreement regulating the consequences of the divorce to the judge for approval.

The request may be lodged either by the respective attorneys of the parties or by a solicitor chosen by mutual agreement.

Divorce by mutual consent can not be requested during the first twenty-four (24) months of the marriage.

Article 238-4. The judge to whom the application is made examines it with each of the spouses and then brings them together. He makes sure that every effort has been made to try to reconcile them.

The judge pronounces the divorce if he has acquired the conviction that the will of each spouse is real and that each of them has freely given his consent.

It shall, by the same decision, approve the agreement regulating the consequences of divorce and homologate the agreement.

Article 238-5. The judge may refuse homologation and not divorce if he finds that the agreement insufficiently preserves the interests of the children or of one of the spouses.

He may also have the clauses of this agreement removed or modified which appear to him to be contrary to the best interests of the children or of the spouse.

When the divorce is pronounced and the agreement homologated, the spouses themselves give effect to the consequences of the divorce settled by the agreement.

Content in this article is for information purposes only and does not constitute legal advice.

Once you and your other half have decided that you are made for each other and are willing to tie the knot, you need to make an application at the Civil Status Office. A publication of the proposed civil marriage should be made 10 days prior to the proposed date of marriage at the Civil Status Office of the locality within the District where the civil marriage is to take place. During this 10 days, people can officially object to your wedding taking place. Once this time has elapsed, you can get married. You will require two witnesses on the day of the wedding and you and your future spouse will have at time of celebration of a civil marriage, to inform the Civil Status Officer of the matrimonial regime you wish to be governed by for insertion in the marriage entry. The matrimonial regime allows the spouses to specify how their existing property as well as those acquired after the marriage will be divided upon divorce or when one of them passes away.

At what Age can I Get Married?

The  age  at  which  a person  can  civilly  marry is 18 years.  A  minor  over 16  and  under 18  can  contract  civil marriage  with  the  consent of  his/her parents. If one of the parents is dead, the other parent may consent to the marriage on production to the Civil Status Officer, the relevant proof of the death of the other spouse.

Where can I Get Married?

If you choose to get married at the Civil Status Office, you do not have any fee to pay. However, you may also choose to get married at home, in a religious place or some other location instead of the Civil Status Office, in which case, you will be required to pay a small fee to cover the cost of the Civil Status Officer who will perform the ceremony.

What are the Documents Needed?

MAURITIAN CITIZEN

(a)  Birth Certificate issued within the last three (3) months (both);

(b)  National Identity Card (both);

(c)  Marriage certificate with annotation of divorce (if divorced);

(d)  Death and Marriage certificates (if widowed).

NON CITIZEN

(a)  Passport;

(b)  Birth Certificate;

(c)  Divorce papers/Previous marriage certificate with annotation of divorce (if applicable);

(d)  Death and Marriage certificates (If applicable);

(e)  Certificate of character/morality from country of residence;

(f)  Work/Residence permit (applicable to expatriates);

(g)  Proof of financial means (Contract of employment or recent bank statement or recent salary slip);

(h)  Medical certificate attesting that applicant party does not suffer from any infectious or contagious disease (from a medical officer practicing in Mauritius);

(i)   Affidavit sworn before the Supreme Court of Mauritius against payment of Rs150 only; and

(j)   “Certificat de capacité à marriage” for French national (form available at the French Embassy, St. Georges Street, Port-Louis).

*In addition, a woman willing to contract a second marriage before the expiry of 300 days since the dissolution of her first marriage by divorce or death must produce a medical certificate of non pregnancy.

*Where any party cannot produce (a) and (b) above, he or she may instead produce an affidavit.

*All documents to be submitted in original copies duly authenticated and photocopies.

What are the matrimonial regimes? 

There are three (3) types of matrimonial regimes:-

1. The system of legal community of goods and property;
2. The system of legal separation of goods
3. A marriage settlement embodied in a notarial deed

Can I keep my name or do I have to take my husband’s name? 

The wife has three (3) options:

1. to use her husband’s surname e.g. Mary Smith;
2. to keep her maiden name, together with her husband’s surname e.g. Mary Jones – Smith; or
3. to  keep her maiden name only e.g. Mary Jones.

Interestingly, husbands can also choose to use their future wive’s surname but this can only be done through an affidavit.

Content on this page is for information purposes only and does not constitute legal advice.

In a previous article we had seen that if you wish to get civilly married, you need to make an application at the Civil Status Office. A publication of the proposed civil marriage should be made 10 days prior to the proposed date of marriage at the Civil Status Office of the locality within the District where the civil marriage is to take place and in the office of the district in which each of the parties has resided in Mauritius for 7 days immediately preceding the day of publication.  During this 10 days, people can officially object to your wedding taking place, and once this time has elapsed, you can get married. But, what happens if someone objects to your marriage? This article will briefly look at what happens next.

Step 1: The Registrar of Civil Status Investigates

According to section 22 of the Civil Status Act (Objections to marriage), where, after publication of a proposed civil marriage, any person has any ground to object to the celebration of the marriage or is of the opinion that any provision of the Civil Status Act or of any other enactment relating to the marriage is likely to be infringed, he may lodge with the Registrar of Civil Status a notice of objection to the proposed marriage, and upon receipt of a notice of objection, the Registrar of Civil Status shall enquire into the matter and, after hearing the parties, make a decision upholding or rejecting the objection, and inform the parties accordingly.

Step 2: You go to Court in front of the Judge in Chambers

If the Registrar of Civil Status, does indeed uphold the objection made against your marriage, you may, within a period not exceeding 30 days from the date on which you are informed of the decision, apply to the Judge in Chambers through your Attorney (Avoué) for an order to quash the decision of the Registrar of Civil Status. The case is then heard in Chambers, where your legal representative, usually your Barrister (avocat) will present your case to the Judge in Chambers and upon hearing the case, the Judge in Chambers shall make an order quashing or upholding the decision, or such other order as he may deem fit. The Judge in Chambers will then transmit the order to the Registrar of Civil Status who shall cause it to be entered in the appropriate register.

Step 3: You get Married (or not) 

Where the proposed marriage may be celebrated in virtue of an order transmitted to the Registrar of Civil Status, the Registrar of Civil Status shall cause the marriage to be celebrated—

(a) at such time as is convenient to the parties; and

(b) without the parties having to make a fresh publication of their proposed

marriage.

Content on this page is for information purposes only and does not constitute legal advice.