Practice Area
Overview
Divorce in Mauritius is governed principally by the Code Civil Mauricien and the Divorce and Judicial Separation Act.
The divorce process in Mauritius depends on the ground on which the divorce is sought, whether both spouses agree to the divorce and its consequences, whether the proceedings are contested, and whether issues relating to children, maintenance or other financial matters need to be determined.
Divorce proceedings are dealt with by the Family Division of the Supreme Court of Mauritius.
This guide explains the main divorce procedures in Mauritius, from the grounds for divorce and filing of the petition through to the Provisional and Permanent Decree.
Grounds for Divorce
Mauritian law provides for four principal grounds or routes to divorce:
01
A spouse may seek a divorce where facts attributable to the other spouse constitute a serious or repeated breach of the duties or obligations of marriage.
The Petition must set out the facts relied upon in support of the application. Where the proceedings are contested, the Court will consider the evidence placed before it in determining whether the legal requirements for divorce have been established.
02
Divorce may also be sought on the ground of rupture de la vie commune, where the spouses have been factually separated for the period prescribed by law and the conditions applicable to that ground are satisfied.
Unlike a fault-based divorce, this ground does not require one spouse to establish matrimonial fault on the part of the other.
03
This procedure applies where the spouses accept that the marriage has broken down and agree on the principle of divorce.
It is distinct from divorce by mutual consent. Agreement that the marriage should end does not necessarily mean that the parties have reached agreement on every consequence arising from the divorce.
04
Where both spouses agree to divorce and agree on the consequences of the divorce, they may proceed by mutual consent.
The spouses submit a Joint Petition together with an agreement regulating the consequences of their divorce for the Court’s consideration and approval.
The Process
The divorce procedure in Mauritius differs according to the ground on which the divorce is sought and whether the spouses agree on the divorce and its consequences.
Where both spouses agree to divorce and have reached agreement on the consequences of their divorce, they may proceed by mutual consent.
Where there is no such agreement, the procedure will depend on the ground relied upon and whether the proceedings are contested.
Route One
Divorce by mutual consent applies where both spouses agree to the divorce and have reached agreement on the consequences arising from it.
As the parties proceed jointly, the procedure is generally more straightforward than a contested divorce.
The spouses must first agree on the principle of divorce and on the consequences of their divorce.
An agreement is prepared setting out the arrangements agreed between the spouses and is submitted to the Court as part of the divorce proceedings.
Where there are children, the arrangements concerning them will also need to be addressed, as applicable.
Unlike proceedings in which one spouse petitions against the other, a divorce by mutual consent is initiated by a Joint Petition.
Both spouses therefore proceed as Joint Petitioners.
The Joint Petition is prepared together with the agreement regulating the consequences of the divorce.
The documents required for the proceedings may include:
Additional documents may be required depending on the circumstances of the parties.
The Joint Petition, together with the agreement and required supporting documents, is lodged before the Family Division of the Supreme Court of Mauritius.
A date is thereafter fixed for presentation of the matter before the Court.
The matter comes before the Judge on the date fixed for presentation.
As the spouses are proceeding jointly and have agreed upon the divorce and its consequences, the procedure differs from a fault-based or otherwise contested divorce in which a Respondent may oppose the Petition.
The Court considers the Joint Petition and the agreement submitted by the spouses.
Where the Court is satisfied that the applicable requirements have been met, the Judge may pronounce a Provisional Decree of Divorce.
The divorce is not yet final merely because the Provisional Decree has been pronounced.
The Provisional Decree subsequently becomes permanent in accordance with the statutory procedure prescribed by the Divorce and Judicial Separation Act.
Subject to the applicable statutory provisions, the Provisional Decree ordinarily becomes permanent after the prescribed period of three months.
The Permanent Decree completes the divorce process.
Route Two
Where the spouses are not proceeding by mutual consent, a different procedure applies.
Proceedings may, depending on the circumstances, be instituted on the ground of fault or breakdown of the matrimonial relationship (rupture de la vie commune).
Unlike divorce by mutual consent, these proceedings are initiated by one spouse, referred to as the Petitioner, against the other spouse, referred to as the Respondent.
The main procedural steps are as follows.
Before proceedings are commenced, the circumstances of the marriage should be considered to determine the appropriate legal ground upon which divorce will be sought.
Where divorce is sought on the ground of fault, the Petition will set out the facts relied upon against the other spouse.
Where divorce is sought on the ground of breakdown of the matrimonial relationship, the proceedings are based on the factual separation of the spouses for the period required by law and the ending of their matrimonial life rather than establishing fault by one spouse against the other.
Divorce proceedings are initiated by preparing a Petition setting out the material facts relied upon and the orders sought from the Court.
Where divorce is sought on the ground of fault, the Petition sets out the facts alleged against the Respondent.
Where divorce is sought on the ground of breakdown of the matrimonial relationship, the Petition sets out the circumstances supporting that ground.
The Petition is accompanied by the relevant supporting documents and information.
Depending on the circumstances, these may include:
Additional documentation may be required depending on the circumstances of the particular case.
The Petition is lodged before the Family Division of the Supreme Court of Mauritius.
Once the Petition has been lodged, a date is fixed for its presentation before the Court.
The Petition must then be formally served upon the Respondent.
The Respondent is given the prescribed notice before the date fixed for presentation. In the ordinary procedure, the Petition must be served at least 15 days before the date fixed for presentation.
Service is an important procedural step as it formally informs the Respondent of the divorce proceedings and provides the Respondent with an opportunity to appear and respond.
The Petitioner must be present before the Court on the date fixed for presentation.
What happens thereafter will depend principally upon the position adopted by the Respondent.
Where the Respondent attends Court and does not resist the divorce, the matter may proceed as an undefended case and be fixed for hearing on the merits.
Where the Petition has been personally served upon the Respondent but the Respondent does not attend Court on the date of presentation, the matter may likewise proceed as an undefended case and be fixed for hearing, subject to the applicable procedural requirements having been satisfied.
The absence of the Respondent does not therefore necessarily prevent the divorce proceedings from progressing.
Where the Respondent contests the divorce proceedings, the Respondent may file a Notice of Objection.
The proceedings will then be dealt with as a contested matter and the Court will consider the respective positions and evidence of the parties.
A further situation can arise where the Respondent considers that he or she is not at fault but nevertheless believes that the marriage can no longer subsist.
Depending on the circumstances, the Respondent may file a Notice of Objection together with a Cross-Petition, seeking a divorce against the original Petitioner on the basis of the latter’s alleged fault.
The original Petitioner consequently becomes the Cross-Respondent in relation to the Cross-Petition.
The Court may therefore be required to determine the competing allegations and claims of both spouses.
Following completion of the relevant procedural steps, the case proceeds to a hearing on the merits.
In an undefended matter, the Court considers the evidence presented in support of the Petition.
Where the divorce is contested or there is a Cross-Petition, the Court may be required to hear the respective evidence of the spouses and their witnesses and determine the disputed issues.
The duration of this stage will depend upon the nature and complexity of the case, the evidence required and the availability of the Court.
The divorce proceedings may also require the Court to deal with matters arising from the breakdown of the marriage.
Where applicable, these may include orders relating to:
The particular orders required will depend upon the circumstances of the family.
Following the hearing, where the Court is satisfied that the applicable requirements for divorce have been established, it may pronounce a Provisional Decree of Divorce.
The Court may at the same time make appropriate orders concerning the children and financial matters arising from the breakdown of the marriage.
The granting of the Provisional Decree is an important stage in the divorce process, but it does not yet constitute the final stage of the divorce.
The Provisional Decree subsequently becomes permanent in accordance with the procedure and statutory period prescribed by the Divorce and Judicial Separation Act.
Subject to the applicable statutory provisions, the Provisional Decree ordinarily becomes permanent after three months.
The Permanent Decree completes the divorce process.
Rupture de la Vie Commune
Where divorce is sought on the ground of breakdown of the matrimonial relationship (rupture de la vie commune), it is not necessary for either spouse to establish matrimonial fault on the part of the other.
This ground is based on the spouses having been factually separated for the period required by law and their matrimonial life having come to an end.
The Court may nevertheless be required to consider the financial consequences of the divorce. Depending upon the circumstances, appropriate provision may be made concerning the maintenance of the Respondent.
The precise procedure and orders required will depend on the individual circumstances of the spouses.
Key Considerations
There is no single duration applicable to every divorce proceeding in Mauritius.
The timeframe will depend on several factors, including:
A divorce by mutual consent will generally involve fewer disputed issues than contested proceedings. However, the precise timeframe will depend on the circumstances of each particular case.
It should also be borne in mind that the pronouncement of a Provisional Decree does not immediately complete the divorce process. The Provisional Decree remains subject to the statutory process before becoming permanent.
Where spouses have children, the divorce proceedings may also involve issues concerning their welfare, custody or living arrangements, rights of visit and accommodation (droit de visite et d’hébergement), and financial arrangements for their maintenance.
The Court has powers to make appropriate orders concerning the children and, when determining matters relating to custody, the interests of the child are of primary importance.
The existence of children may therefore affect both the documentation required for the divorce proceedings and the matters which must be addressed before the Court.
Where the spouses are proceeding by mutual consent, the arrangements agreed between them concerning their children will also need to be addressed as part of the divorce proceedings.
Divorce proceedings may also require consideration of financial matters arising from the breakdown of the marriage.
Depending upon the circumstances, these may include maintenance between spouses and financial arrangements concerning the children.
The appropriate arrangements will depend upon the particular facts of the case and the respective circumstances of the spouses.
Where the parties are unable to reach agreement on matters requiring determination, the Court may be required to make appropriate orders.
Divorce and the division of matrimonial assets should not necessarily be treated as the same legal exercise.
The consequences of divorce for property and other assets will depend, among other matters, on the matrimonial regime applicable to the spouses, ownership of the relevant assets and the particular circumstances of the marriage.
The appropriate steps for the division, liquidation or settlement of matrimonial assets should therefore be considered separately in light of the matrimonial regime and circumstances of the parties.
Legal Representation
Divorce proceedings involve formal court procedures, including the preparation and filing of the appropriate pleadings and compliance with applicable procedural requirements.
Obtaining legal advice at an early stage can also assist in identifying the appropriate ground and procedure for divorce and determining how issues concerning children, maintenance, property and other consequences of the breakdown of the marriage should be addressed.
R&F Legal provides assistance to Clients on the appropriate ground for divorce, preparing and conducting divorce proceedings and advising on related matters arising from the breakdown of a marriage.
Frequently Asked Questions
Potentially, yes. Divorce by mutual consent is not the only route to divorce recognised under Mauritian law.
Depending on the circumstances, a spouse may seek divorce on another ground recognised by law even where the other spouse does not consent to the divorce.
Where the Respondent contests the proceedings, the matter may proceed as a contested divorce and the Court will determine the case on the basis of the applicable law and evidence placed before it.
Where the Respondent has been properly served but does not appear on the date of presentation, the proceedings may, subject to compliance with the applicable procedural requirements, proceed as an undefended matter.
The absence of the Respondent does not therefore necessarily prevent the divorce proceedings from continuing.
Yes. Mauritian law provides for divorce by mutual consent where the applicable requirements are satisfied.
The spouses proceed jointly and submit a Joint Petition together with an agreement regulating the consequences of their divorce for the Court’s consideration.
Where the Respondent contests the divorce, a Notice of Objection may be filed.
Depending on the circumstances, the Respondent may also file a Cross-Petition seeking divorce against the original Petitioner.
The Court may then be required to hear evidence from the parties and their witnesses before determining the matter.
Not immediately.
Where the Court grants the divorce, it first pronounces a Provisional Decree of Divorce.
The Provisional Decree subsequently becomes permanent in accordance with the statutory procedure and applicable period prescribed by law.
The Permanent Decree completes the divorce process.
The duration depends on the type and complexity of the proceedings.
A divorce by mutual consent or an undefended divorce will generally involve fewer disputed issues than a contested divorce. Contested proceedings may take longer where evidence must be heard or issues concerning children, maintenance or other matters require determination.
Court scheduling and availability will also affect the overall timeframe.
There is no single cost applicable to every divorce.
The cost will depend on the nature and complexity of the proceedings, including whether the divorce is by mutual consent, undefended or contested, the issues involved and the legal work required.
R&F Legal can provide information regarding the applicable professional fees after considering the circumstances of the proposed divorce proceedings.
Where there are children, issues concerning their custody or living arrangements, rights of visit and accommodation and financial maintenance may need to be addressed.
The arrangements will depend on the particular circumstances of the family and, where necessary, the Court may make appropriate orders concerning the children.
Not necessarily.
The consequences of divorce for matrimonial property will depend upon matters including the matrimonial regime applicable to the spouses, ownership of the assets concerned and their individual circumstances.
The division or settlement of matrimonial assets may therefore require separate consideration following or in connection with the divorce proceedings.
Confidential Consultation
Every divorce has its own factual and legal circumstances. Obtaining advice at an early stage can help identify the appropriate ground for divorce, the procedure to be followed and the issues which should be addressed before proceedings are commenced.
R&F Legal provides legal assistance in relation to divorce and matrimonial proceedings in Mauritius, including divorce by mutual consent, undefended and contested divorce proceedings and related family-law matters.
If you are considering divorce or have received divorce proceedings from your spouse, contact R&F Legal to discuss your circumstances and obtain advice on the divorce process applicable to your situation.
Disclaimer. This publication provides general information on Mauritian law and does not constitute legal advice. Legal advice should be obtained having regard to the particular circumstances of each case.