Maintenance of a person by an ex-spouse following divorce

1. “Education is the most powerful weapon which you can use to change the world” – quotation of Nelson Rolihlahla Mandela, fondly referred to as Madiba. I have recently come across an article concerning India about maintenance by one spouse or the other entitled “interesting trends in divorce matters”. In this article, the gist of the reasoning is as follows:
“In recent Indian divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was     earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.”
2.  Mother India has made huge leaps forward in many fields but when it comes to certain social matters, taboos still exist. It is interesting to note the recent stand of Court in India as per the article “interesting trends in divorce matters”.
3. In Mauritius, we have clear mechanism to deal with the problem of maintenance of one spouse against the other following divorce.
4. Before embarking on the issue of maintenance in Mauritius, it will be pertinent to speak on the different grounds of divorce.
5. Divorce legally puts an end to a marriage and spouses no longer remain as husband and wife.
6. Prior to 2011, Section 229 of the Code Civil Mauricien (CCM) read as follows:
« Le divorce peut être prononcé soit en cas de faute ou en cas de rupture de la vie commune »

La faute
7. Article 230 of the CCM reads:
«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.»
8. Article 230 mentions facts. But in reality, it is not necessary to have more than one fact. One is enough. It is important that the spouse has committed the impugned acts voluntarily.
9. Some examples on the grounds of Faute are quoted below:
a. Breaching the duties of loyalty, support and assistance;
b. Refusing to provide moral and material direction of the family;
c. Repeated insults to the spouse (see Nagadoo J M V. Nagadoo N 2013 SCJ 453
d. Acts detrimental to the honor and reputation of the other spouse;
e. Change of religion by the other spouse: In Veeramootoo v. Veeramootoo (1990) MR 34, the couple was originally of Tamil faith, but the woman later became a follower of Jehovah’s Witness. The court held that changing of religion itself is not a cause of divorce per se but if this change entails a change in behavior and attitudes of a spouse against the other, then yes it is a cause for divorce;
f. The impotence of the husband; In Sookia v Sookia [1959 MR 216];
g. Convictions - If one spouse is sentenced to 5 years or more of penal servitude, the other spouse can seek divorce on this basis.
h. Non-disclosure of a material fact such as some kind of handicap by one of the spouses. However, a spouse would not have committed a ‘faute’ if he or she had not acted in bad faith when failing to disclose material facts prior to the marriage. NURSING S v NURSING V.K 2009 SCJ 405;
i. unreasonable, persistent and unprovoked refusal of sexual intercourse - Nadal v Nadal [1956 MR 158])
 
Rupture de la vie commune
10. When the spouse has resided separately for a certain period of time (previously 5 years now 3 years), one of the spouse may ask for divorce for rupture de la vie commune. However, in Ramsamy v. Ramsamy (1990) MR 58, the court decided that even if the spouse were residing under the same roof, evidence showed that they did have « une vie séparée”.
11. In 'Sougun v. Sougun', the court dealt with the computation of time element. Even though at a certain point in time there were efforts to have the couple reconciliated (but no reconciliation occurred), the time still runs.
12. Le demandeur doit prévoir dans sa demande les moyens par lesquels il entend exécuter ses obligations alimentaires envers son conjoint et ses enfants. Cela est très important car en l'absence de telles prévisions dans la demande de divorce, le juge va vraisemblablement  rejeter la demande.
13. Section 2 of Act No.2 of 2011, which took effect as from 15 May 2011, has repealed the then section 229 of the Code Civil Mauricien and re-introduced the notion of divorce by mutual consent. The new section 229 of the CCM reads as follows:-
          
Le Divorce peut être prononcé -
1- en cas de faute
2- en cas de rupture de la vie commune
3- en cas d'acceptation du principe de la rupture du mariage ; ou
4- en cas de consentement mutuel.

 
So two additional new ways of obtaining divorce have been now provided by the, that is :-
a) en cas d'acceptation du principe de la rupture du mariage
b) en cas de consentement mutuel

Consentement Mutuel – Section 238(3) of the CCM
14. For the parties to be able to seek divorce by “consentement mutuel”, there are certain criteria that must first be satisfied. Most importantly, both parties must have been married for at least 24 months and must voluntary seek divorce. It is worthwhile to note that “consentement mutuel” was in our law from 1808 to1884.
15. Once these are satisfied, the process of divorce is quite quick in terms of time and also cost effective since parties can appoint a single attorney (joint petition) and decide on whatever arrangements they deem fit in relation to their assets and children.
16. The Judge will normally then pronounce a provisional decree of divorce if she/he forms the view that the parties genuinely want divorce and he will also approve the terms of settlement agreed between the parties.

L'acceptation du principe de la rupture du mariage -Section 238(1) of the CCM
17. Under “l’acceptation du principe de la rupture du mariage”, the motion for divorce can be asked by one of the parties or by both of them jointly under the principle that they know that the marriage has broken down and divorce is unavoidable but they cannot or have not reached a consensus on alimony or custody issues. So, there is no need for the parties to aver and prove “faute”.
 
The main difference
18. The two «new ways» are similar in the sense that in both divorce by “d’acceptation du principe de la rupture du marriage” and “consentement mutuel”, all parties agree on the principle of divorce.
19. The difference lies in the fact that in the former the parties do not agree on the consequences of the divorce whereas in the latter parties agree on the consequence of the divorce.
20. Let us return on the issue of maintenance for each category of divorce.
Maintenance        
 
Faute
21.  The party against whom divorce has been pronounced on the grounds of faute is not entitled to alimony. Even though s/he wants the divorce, it is not de facto that alimony will be granted. The need and means tests would be applied. It is pertinent to note that in such a divorce instead of granting the divorce on the grounds of faute, the marriage may be dissolved on the grounds of torts partagés. In such a divorce the question of alimony would not arise.

Rupture de la vie commune
22. Normally the petitioner would include in his/her petition a clause whereby he undertakes to pay alimony of certain amount or else will give some other comfort for the maintenance of the other party. In the Supreme Court case of Lallane v Lallane (1983 MR 126), the judge came to the conclusion that this might not be a sine qua non condition for obtaining of this kind of divorce.
23. Before that, there were two schools of thought, one maintaining that alimony is an imperative condition while the other asserting the contrary. If the respondent has been living for 3 years separately and has been able to maintain himself/herself, then most probably the petitioner will not be compelled to pay any alimony. I am tempted to say that the clause is on a “comply & explain” basis. Comply means paying alimony and explain means justifying why alimony is not needed in a particular case.
 
L’acceptation du principe de la rupture du mariage
24. In this particular case, both parties have understood that the marriage should be dissolved but the reason why there is not a joint petition is that they have failed on one or some other issues for example on the custody of children, on the division of properties or on the question of maintenance including alimony. If the parties have come to terms on the question of maintenance then this normally becomes judgment of the Supreme Court Family Division which will adjudicate on the matter.

Consentement Mutuel
25. This is rather straightforward inasmuch as in the petition itself the issue of maintenance or alimony should be included. In fact before coming to the court, the parties must have fine-tuned all the issues at stake. However it is to be noted that the Judge is not required to accept any terms of settlement if it is prejudicial to one of the parties or to the children. The court in dealing with maintenance matters will always ensure that the best interest of the child prevails.
26. It is worth noting that divorce undergoes two main stages. Firstly a provisional decree of divorce is pronounced followed secondly by a permanent decree. Today the law has made this more efficient by the automatic conversion for a provisional decree to a permanent one if there has been no objection 3 months after the pronouncement of the provisional one.
27. Non-payment of alimony is not only a civil matter but it may be a criminal offence as well entailing a fine not exceeding Rs 50,000 or even imprisonment not exceeding 2 years.
28. Newton's third law of motion states that for every action there is an equal and opposite reaction. As one of the Judges of the Supreme Court once stated “Love, air and water are not sufficient to maintain a relationship. Anyone creating or dissolving a matrimonial relationship should shoulder his/her responsibility.”