CHAPTER 124
MATRIMONIAL CAUSES ACT

Arrangement of Sections

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

2A. Family Tribunal to decide on matters of care, custody, access and maintenance of child.

3. Jurisdiction of the Supreme Court.

PART II

DIVORCE

4. Application for divorce.

5. Reconciliation.

6. Grant of divorce.

7. Rescission of conditional order of divorce.

8. Supplemental provisions regarding evidence of breakdown.

9. Protection of respondent in cases falling under section 4(1)(d).

10. Relief for respondent in divorce proceedings.

11. No appeal against absolute order of divorce.

PART III

NULLITY AND SEPARATION

12. Grounds for nullity of marriage.

13. Legal effect of certain marriages notwithstanding order of nullity.

14. Order of separation.

15. Effect of order of separation.

PART IV

PRESUMPTION OF DEATH

16. Presumption of death and dissolution of marriage.

17. Intervention of Attorney-General in proceedings for divorce, nullity and presumption of death.

PART V

CHILDREN

18. Order for care, custody etc in respect of a relevant child.

PART VI

FINANCIAL PROVISIONS

19. Maintenance pending suit.

20. Financial relief.

21. Commencement of proceedings for maintenance pending suit or financial relief.

22. Anti-Avoidance measures.

23. Variation order by court.

PART VII

MISCELLANEOUS

24. Scope and duration of order made in respect of a relevant child.

25. Protection of a party, child or property etc.

26. No damages.

27. Rules of court.

28. Transitional.

3 of 1992,

6 of 1998.

[Date of commencement: 1st September 1992]

PART I

PRELIMINARY

1. Short title.

This Act may be cited as the Matrimonial Causes Act.

2. Interpretation.

In this Act—

"adopted" means adopted under the Children Act, the now repealed adoption Act or a corresponding law of any other country or jurisdiction;

"child" includes an adopted child or an illegitimate child of a party to a marriage;

"court" means the Supreme Court;

"Family Tribunal" means the Family Tribunal established under the Children Act;

[Ins by reg 2(a) of Act 6 of 1998 w.e.f. 22 June 1998.]

"matrimonial causes" means—

(a) proceedings by a party to a marriage for an order of divorce, nullity or separation;

(b) proceedings for an order of presumption of death and dissolution of marriage;

(c) proceedings in respect of any other matter under this Act;

"relevant child" means—

(a) a child of both parties to a marriage;

(b) a child, not being a child in the care of the Director responsible for children affairs under the Children Act and in respect of whom a party to the marriage is acting as a foster parent under the Children Act, who has been treated as a child of the family by the parties;

"welfare" includes access, care, custody, maintenance and education.

2A. Family Tribunal to decide on matters of care, custody, access and maintenance of child.

(1) The jurisdiction to hear and determine matters relating to the care, custody, access or maintenance of a child under this Act is vested in the Tribunal and for this purpose—

(a) a reference in the Act to the court shall be deemed to be a reference to the Family Tribunal;

(b) without prejudice to the powers conferred upon it by the Children Act, the Family Tribunal shall have all the powers of the court under this Act;

(c) where consequent upon an application or other matters before the court, a matter relating to the care, custody, access or maintenance of a child is required to be determined, the court shall remit the last mentioned matter to the Family Tribunal for its determination.

[S 2A ins by s 2(b) of Act 6 of 1998 w.e.f. 22 June 1998.]

[Note: As per s 3 of Act 6 of 1998, the rules of the court made under s 27 will follow until the Family Tribunal has established the rules of the Tribunal, subjecct to such modifications as may be necessary in the circumstances.]

3. Jurisdiction of the Supreme Court.

(1) Subject to subsection (2), the Supreme Court shall have jurisdiction in relation to matrimonial causes on an application of a party to a marriage who, at the date when proceedings are begun—

(a) is domiciled in Seychelles; or

(b) has been habitually resident in Seychelles throughout the period of one year ending with the date when proceedings are begun.

(2) The Supreme Court shall have jurisdiction in respect of proceedings—

(a) under section 25 if a party to the marriage—

(i) is domiciled in Seychelles; or

(ii) is resident in Seychelles at the date when proceedings are begun;

(b) for nullity, if a party to the marriage—

(i) is domiciled in Seychelles; or

(ii) has been habitually resident in Seychelles throughout the period of the year ending with the date when proceedings are begun;

(c) in relation to a relevant child, if the child is in Seychelles at the date when proceedings are begun.

PART II

DIVORCE

4. Application for divorce.

(1) Subject to this Act, a party to a marriage may petition the court for divorce on the ground that the marriage has irretrievably broken down because—

(a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or

(d) the petitioner and the respondent have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition and the respondent consents to the grant of the divorce.

(2) Subject to subsection (3), a party to a marriage may not petition for divorce within one year of the date of the marriage.

(3) The Court may, on an application, grant leave for a petition for divorce within the one year referred to in subsection (2) if the court is satisfied that the petitioner has suffered exceptional hardship or the respondent is exceptionally depraved.

5. Reconciliation.

(1) Subject to this Act, the court shall not grant a divorce on a petition under section 4(1) unless it is satisfied that—

(a) attempt has been made to reconcile the petitioner and the respondent;

(b) after inquiring into the evidence presented by the parties to the proceedings, there is no reasonable possibility of reconciliation between the parties; and

(c) the marriage has irretrievably broken down as provided in section 4(1).

(2) The court shall, if it appears to the court at any stage of the proceedings for divorce that there is a reasonable possibility of reconciliation between the parties, adjourn the proceedings for such period as the court thinks fit to enable attempt at reconciliation to be made.

6. Grant of divorce.

(1) When granting a divorce the court shall in the first instance grant a conditional order of divorce which, subject to this Act, the court may, on application, make absolute.

(2) Where the court has granted leave under section 4(3) and it appears to the court in the course of the proceedings for divorce that the petitioner has obtained leave by misrepresentation or concealment, the court may—

(a) dismiss the petition; or

(b) grant a conditional order of divorce on condition that an application to make it absolute shall not be made within such time as the court may specify in the order.

(3) An application for a conditional order of divorce to be made absolute may be made by the party who was granted the order at any time after the expiration of six weeks after the grant of the conditional order of divorce or after such longer or shorter period which the court has specified in the order.

(4) Where a party who was granted a conditional order of divorce fails to make an application under subsection (3) after three months from the earliest date on which the party would have made such application, the party against whom the conditional order of divorce was granted may apply to the court to make the order absolute.

(5) On an application under subsection (3) or subsection (4), the court may, subject to subsection (6)—

(a) make the conditional order of divorce absolute;

(b) rescind the conditional order of divorce;

(c) require further inquiry to be made in the case;

(d) take any action under section 5(2);

(e) otherwise deal with the case as the court thinks fit.

(6) Where there is a relevant child, the court shall not make a conditional order of divorce absolute unless the court is satisfied that arrangement, to the satisfaction of the court, relating to the access, custody, maintenance and education of the child has been made by the parties and that the arrangement is in the best interest of the welfare of the child or an order under section 18 has been made relating to the child.

7. Rescission of conditional order of divorce.

Where a conditional order of divorce has been made, but not become absolute, the court may, if the court is satisfied, on the application of a party to the proceedings or on the intervention of the Attorney-General, that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or of any other circumstances, rescind the conditional order and, if the court thinks fit, order the rehearing of the proceedings.

8. Supplemental provisions regarding evidence of breakdown.

(1) For the purposes of section 4(1)(a)—

(a) a party to a marriage may not rely on the adultery of the other party if, after the adultery became known to that party, the parties have lived together for a period of, or periods which together amount to, more than six months;

(b) the court shall, in determining whether the petitioner finds it intolerable to live with the respondent, disregard the fact that the parties to the marriage have lived together for not more than six months after the party came to know of the adultery of the other party.

(2) For the purposes of section 4(1)(b), the court shall, in determining whether the petitioner cannot reasonably be expected to live with the respondent disregard the fact that the parties to a marriage have lived together for a period of, or periods which together amount to, not more than six months after the date of the occurrence of the last incident relied on by the petitioner and held by the court to support the petitioner's petition.

(3) For the purposes of section 4(1)(c)—

(a) the court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing the necessary intention if the evidence before the court is such that, had the party not been so incapable, the court would have inferred that his desertion continued at that time;

(b) the court shall not take into account any period of, or periods which together amount to, not more than six months during which the petitioner and the respondent have resumed living together but such period or periods shall not be counted as part of the period of desertion.

(4) For the purposes of section 4(1)(d)—

(a) the court shall not take into account any period of, or periods which together amount to, not more than six months during which the petitioner and the respondent have resumed living together but any such period or periods shall not be counted as part of the period during which the parties have lived apart;

(b) the petitioner and the respondent shall be treated as living apart unless they are living with each other in the same household;

(c) the consent of the respondent shall not be valid unless given by the respondent—

(i) in court in the course of the proceedings for the divorce; or

(ii) in the prescribed form.

(5) Where a party to a marriage who has been granted a separation order under section 14 or an order under section 25(2)(a) or an order under section 4(a) of the Summary Jurisdiction (Wives and Children) Act applies for a divorce under section 4(1) on the same facts, or substantially the same facts as those on which he was granted the order under section 14 or section 25(2)(a) or section 4(a) of the Summary Jurisdiction (Wives and Children) Act—

(a) the court may treat the order as sufficient proof of the facts on which the order was granted;

(b) a period of desertion immediately preceding the institution of proceedings for the order shall, for the purposes of section 4(1)(c), be deemed to be a period of desertion immediately preceding the presentation of the petition for divorce if—

(i) the parties to the marriage have not resumed living together; and

(ii) the order has been continuously in force since it was granted,

but the court shall not grant a conditional order of divorce without receiving evidence from the petitioner.

9. Protection of respondent in cases falling under section 4(1)(d).

(1) Where the court has granted a conditional order of divorce based on section 4(1)(d) and the respondent has, at any time before the order is made absolute, applied to the court, the court—

(a) may rescind the order where the respondent alleges and the court is satisfied that the petitioner misled the respondent, whether intentionally or otherwise, about any matter which the respondent took into account in deciding to consent to the grant of the divorce; or

(b) shall, subject to subsection (2), not make the order absolute unless, after considering all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligation of the parties, and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first, the court is satisfied that—

(i) the petitioner should not be required to make any financial provision for the respondent; or

(ii) the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.

(2) Notwithstanding subsection (1)(b), the court may, if it thinks fit, make a conditional order of divorce absolute if—

(a) it appears that there are circumstances making it desirable that the order should be made absolute without delay; and

(b) the court has obtained a satisfactory undertaking from the petitioner that the petitioner will make such financial provision for the respondent as the court may approve.

10. Relief for respondent in divorce proceedings.

If in proceedings for divorce the respondent alleges and proves that the marriage has irretrievably broken down as a result of any matter specified in section 4(1) the court may, subject to this Act, give relief to the respondent as if the respondent had been the petitioner under section 4(1).

11. No appeal against absolute order of divorce.

No appeal shall lie from an absolute order of divorce.

PART III

NULLITY AND SEPARATION

12. Grounds for nullity of marriage.

(1) Subject to this section, court may, on an application, grant an order of nullity if—

(a) a party to the marriage had not, at the time of the marriage, attained the age of marriage and obtained the required consent or authority or both consent and authority, as the case may be, for the marriage in terms of the Civil Status Act and nay other written law;

(b) a party to the marriage had not, at the time of the marriage, obtained the required consent in terms of the Civil Status Act and nay other written law;

(c) the parties to the marriage are within the prohibited degrees of relationship in terms of the Civil Status Act and had not at the time of the marriage obtained the required authority under that Act;

(d) a party to the marriage was, at the time of the marriage, already married to another person and the marriage had not been dissolved;

(e) the parties to the marriage were not respectively male and female;

(f) a party to the marriage was, at the time of the marriage, a mental patient in terms of the Mental Treatment Act or suffering from a mental disorder or of unsound mind;

(g) a party to the marriage did not give a valid consent to the marriage by reason of mistake, fraud, duress, unsoundness of mind or any other legal incapacity;

(h) the marriage was not celebrated in accordance with the Civil Status Act;

(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;

(j) the marriage has not been consummated owing to the incapacity of a party to consummate it;

(k) the respondent was at the time of the marriage suffering from venereal disease in a communicable form or a carrier of the acquired immunity deficiency (AIDS) virus;

(l) the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

(2) The Court shall not grant an order of nullity—

(a) in the case referred to in subsection (1)(a)—

(i) unless proceedings for the order were instituted within 12 months after the petitioner has attained the age of marriage; or

(ii) if the wife had become pregnant since the marriage;

(b) in the case referred to in subsection (1)(b), unless proceedings for the order of nullity were instituted by a party to the marriage or a person whose consent to the marriage was required within 12 months of the marriage;

(c) in the case referred to in subsection (1)(f), (k) or (l)—

(i) unless proceedings for the order were instituted within 12 months of the date of the marriage;

(ii) unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged;

(iii) unless the court is satisfied that the petitioner had not consented to intercourse with the respondent since the discovery by the petitioner of the alleged facts; and

(iv) if the respondent satisfies the court that it would be unjust to grant the order of nullity;

(d) in the case referred to in subsection (1)(g), (i) or (j)—

(i) unless proceedings for the order were instituted within 12 months of the date of the marriage;

(ii) unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged; and

(iii) if the respondent satisfies the court that it would be unjust to grant the order of nullity;

(3) When granting an order of nullity the court shall in the first instance grant a conditional order of nullity which, subject to this Act, the court may, on application, make absolute.

(4) Section 6(3), (4), (5) and (6) and section 7 apply to a conditional order of nullity as they apply to a conditional order of divorce.

(5) Section 11 applies to an absolute order of nullity as it applies to an absolute order of divorce.

13. Legal effect of certain marriages notwithstanding order of nullity.

(1) Notwithstanding any other written law and the grant of an absolute order of nullity under section 12—

(a) a child born of a marriage in respect of which the court has granted an order of nullity under section 12(1)(a) to (d), (f) to (h) or (j) to (k) shall be the legitimate child of the parties to the marriage;

(b) a child born of a marriage in respect of which the court has granted an order of nullity under section 12(1) shall be the legitimate child of the marriage, unless the court has granted the order and the marriage is avoided at the same time pursuant to section 12(1)(l);

(c) where, at the time of the marriage, one of the parties contracted the marriage in good faith, the order of nullity shall, with regard to that party, have effect from the date of the grant of the absolute order of nullity.

(2) For the purposes of subsection (1)(c), the parties to the marriage shall, unless the contrary is proved, be presumed to have contracted the marriage in good faith.

14. Order of separation.

(1) A party to a marriage may petition the court for an order of separation on the ground that the marriage has broken down because of any of the facts specified in section 4(1)(a) to (d).

(2) Sections 5(1)(a) and (b) and (2) and 8 shall, subject to such modification as is necessary, apply to a petition under subsection (1) as they apply to a petition for a divorce under section 4.

(3) An order of separation may include an order—

(a) prohibiting any of the parties to the marriage from molesting the other party to the marriage or any relevant child or any child of a party to the marriage;

(b) prohibiting or restricting a party to the marriage from doing any other thing.

15. Effect of order of separation.

(1) Where the court grants an order of separation under section 14, the petitioner may refuse to cohabit with the respondent.

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