Divorce Act 1997

Link to law: http://laws.gov.ag/acts/1997/a1997-10.pdf

No. 10 of 1997. Divorce Act 1997 1 ANTIGUA
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[ L.S. ]

I Assent,

Joseph Myers,
Governor-General's Deputy.

11th March, 1997.

ANTIGUA AND BARBUDA

No. 10 of 1997

An Act for the reform relating to the dissolution and nullity of
marriage and for matters connected thereto.

ENACTED by the Parliament of AntiguaandBarbudaas follows-

1. ?his Act may be cited as the Divorce Act 1997. Short title.

2. (1) In this Act, Interpretation.

"child of the marriage" means a child of two spouses or
former spouses who, at the material time,

(a) is under the age of sixteen years, or

(b) is sixteen years of age or over and under their
charge but unable, by reason of illness, disability
or other cause, to withdraw from their charge or
to obtain the necessaries of life;

"corollary relief proceeding" means a proceeding in a court
in which either or both former spouses seek a support order
or a custody order or both such orders;

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"court", in relation to any proceedings, means the High Court
of Justice;

"custody" includes care, upbringing and any other incident
of custody;

"custody order'' means an order made under subsection

14 (1);

"divorce proceeding"meansaproceeding in acourt in which
either or both spouses seek a divorce alone or together with
a support order or a custody order or both such orders;

"spouse" means either of a man or woman who are married
to each other,

"support order" means an order made under subsection

13 (2);

"variatiofi order" means an order made under subsection

15 (1);

"variation proceeding" means a p r d i g in a court in
which either or both former spouses seek a variation order.

(2) For the purposes of the definition "child of the marriage" in
subsection (I), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of
parents; and

(b) any child of whom one is the parent and for whom the
other stands in the place of a parent.

(3) The use of the tern "application" to describe a nl2
under this Act in acourt shall not be construed as limiting the m e
under which and the form and manner in which that prwding
may be taken in that court, and the name, manner and f s m of the

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procdmg in that court shall be such as is provided for by the rules
regulating the practice and procedure in that court.

3. (1) The High Court has jurisdiction to hear and determine a Jurisdiction in
divorce proceeding if either spouse has been ordinarily resident in divorce pr*
Antigua and Barbuda for at least one year immediately preceding
the commencement of the procdiig.

4. (1) The High Court has jurisdiction to hear and determine a Jurisdiction in
corollary relief proceediig if - corollary relief

proceedings.

(a) either fonner spouse is ordinarily resident in Antigua
and Barbuda at the commencement of the proceeding;
or

(b) both former spouses accept thejurisdiction of the court.

5. (1) A court has jurisdiction to hear and determine a variation Jurisdiction in
pnx;eeding if - variation

proceedings.

(a) either former spouse is ordinarily resident in Antigua
and Barbuda province at the commencement of the
procdmg; or

(b) both former spouses acceptthe jurisdiction of the court.

6. The iurisdiction conferred on a court by this Act to grant a Exercise of
divorce shallbeexerci~edonl~ byajudgeof thecourt withouiajury . jurisdiction by

judge.

7. (1) Acourtriy, on application by either or both spouses, grant Divorce - ground.
a divorce to the spouse or spouses on the ground that there has been
a breakdown of their marriage.

(2) Breakdown of a marriage is established only if -

(a) the spouses have lived separate and apart for at least
one year immediately preceding the determination of
the divorce proceeding and were living separate and
apart at the commencement of the praxahg;

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(b) the spouse against whom the divorce proceeding is
brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental
cruelty of such a kindas to render intolerable the
continued cohabitation of the spouses.

(3) For the purposes of paragraph (2) (a),

(a) spouses shall be deemed to have lived separate and
apart for any period during which they lived apart and
either of them had the intention to live separate and
apart from the other; and

(b) aperiodduring which spouses have lived separate and
apart shall not be considered to have been intempted
or terminated -

(i) by reason only that either spouse has become
incapable of forming or having an intention to
continue tolive separate andapartorofcontinuing
to live separate and apart of the spouse's own
volition, if it appears to the court that the
separation would probably have continuedif the
spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed
cohabitation during a period of, or periods
totalling, not more than ninety days with
reconciliation as its primary purpose.

~ u t y of legal 8. (1) It is the duty of every attorney-at-law, barrister, solicitor,
advisor. lawyer or advocate who undertakes to act on behalf of a spouse in

a divorce proceeding -

(a) to draw to the attention of the spouse the provisions of
this Act that have as their object the reconciliation of
spouses, and

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(b) to discuss with the spouse the possibility of the
reconciliation of the spouses and to inform the spouse
of the marriage counselling or guidance facilities
known to him that might be able to assist the spouses
to achieve areconciliation, unless the circumstances of
the case are of such a nature that it would clearly not
be appropriate to do so.

(2) It is the duty of every attorney-at law, barrister, solicitor,
lawyer or advocate who undertakes to act on behalf of a spouse in
a divorce proceeding to d~scuss with the spouse the advisability of
negotiating the masers that may be the subject of a support order
or a custody order and to inform the spouse of the mediation
facilities known to him that might be able to assist the spouses in
negotiating those matters.

(3) Every document presented to a court by an attorney-at-law,
barrister, solicitor, lawyer or advocate chat formally commences a
divorce proceeding shall contain astatement by him certifying that
he has complied with this section.

9. (1) In a divorce p r M ~ n g , it is the duty of the court, before ~ u t y of cour t -
considering the evidence, to satisfy itself that there is no possibihty
of the reconciliation of the spouses, unless the circumstances of the
case are of such a nature that it would clearly not be appropriate to
do so.

(2) Where at any stage in a divorce proceeding it appears to the
court from the nature of the case, the evidence or the attitude of either
or both spouses that there is a possibility of the reconciliation of the
spouses, the court shall -

(a) adjourn the proceeding to afford the spouses an
opportunity to achieve a reconciliation; and

(b) with the consent of the spouses or in the discretion of
the court, nominate

(i) aperson with experience or W i n g in marriage
counselling or guidance, or

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Divorce Act I997 No. 10 of 1997.

(ii) in special circumstances, some other suitable
person, to assist the spouses to achieve a
reconciliation.

(3) When fourteen days have elapsed from the date of any
adjournment under subsection (2), the court shall resume the
procmhg on the application of either or both spouses.

(4) No person nominated by a court under this section to assist
spouses to achieve a reconchation is competent or compellable in
any legal proceedings to disclose any admission or communication
made to that person in his or her capacity as a nominee of the court
for that purpose.

(5) Evidence of anything said or of any admission or
communication made in the course of assisting spouses to achieve
a reconciliation is not admissible in any legal proceedings.

h t y of COW - 10. (1) In a divorce p d i n g , it is the duty of the court,
Bars.

(a) to satisfy itself that there has been no collusion in
relation to the application for a divorce and to dismiss
the application if it finds that there was collusion in
presenting it;

(b) tosatisfy itself thatreasonable arrangements havebeen
made for the support of any children of the marriage
and, if such arrangements have not been made, to stay
the granting of the divorce until such arrangements are
made; and

(c) where a divorce is sought in circumstances described
in paragraph 7 (2) (b), to satisfy itself that there has
been no condonation or connivance on the part of the
spouse bringing the proceeding, and to dismiss the
application for a divorce if that spouse has condoned
or connived at the act or conduct complained of unless,
in the opinion of the court, the public interest would be
better served by the divorce.

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(2) Any act or conduct that has been condoned is not capable of
being revived so as to constitute a circumstance described in
paragraph 7 (2) (b).

(3) Forthe purposes of this section, acontinuationorresumptiorr
of cohabitation during a period of, or periods totalling, not more
than ninety days with reconciliation as its primary purpose shall not
be considered to constitute condonation.

(4) In this section, "collusion"meansan agreement or conspiracy
to which an applicant for a divorce is either directly or indirectly a
party for the purposeof subverting the administration ofjustice, and
includes any agreement, understanding or arrangement to fabricate
or suppress evidence or to deceive the court, but does not include an
agreement to the extent that it provides for separation between the
parties, f m c i a l support, division of property or the custody of any
child of the marriage.

11. (1) Subject to this section, adivorce takes effect on the thirty- Effective date
first day after the day on which the judgment granting the divorce genenlly.
is rendered.

(2) Where, on or after rendering a judgment granting a divorce,

(a) the court is of the opinion that by reason of special
circumstances the divorce should take effect earlier
than the thirty-first day after the day on which the
judgment is rendered, and

(b) the spouses agree and undertake that no appeal from
the judgment will be taken, or any appeal from the
judgment that was taken has been abandoned, the court
may order that the divorce takes effect at such earlier
time as it considers appropriate.

(3) A divorce in respect of which an appeal is pending at the end
of the period referred to in subsection (I), unless voided on appeal,
takes effect on the expiration of the time fixed by law for instituting
mappeal from the decision on that appeal or any subsequent appeal,
if no appeal has been instituted within that time.

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(4) For the purposes of subsection (3), the time fixed by law for
instituting an appeal from a decision on an appeal includes any
extension thereof fuced pursuant to law before the expiration of that
time or fixed thereafter on an application instituted before the
expiration of that time.

(5) Notwithstanding any other law, the time fixed by law for
instituting an appeal from a decision referred to in subsection (3)
may not be extended after the expiration of that time, except on an
application instituted before the expiration of that time.

(6) A divorce in respect of which an appeal has been taken to the
Judicial Committee of the Privy Council, unless voided on the
appeal, takes effect on the day on which the judgment on the appeal
is rendered.

(7) Where adivorce takes effect in accordance with this section,
a judge or officer of the court that rendered the judgment granting
the divorce or, where that judgment has been appealed, of the
appellate court that rendered the judgment on the final appeal, shall,
on request, issue to any person a certificate that a divorce granted
under this Act dissolved the marriage of the specified persons
effective as of a specified date.

(8) A cemiicate referred to in subsection (7), or a certified copy
thereof is conclusive proof of the facts so certified without proof of
the signature or authority of the person appearing to have signed the
certificate.

Marriage dissolved. 12. On taking effect, a divorce granted under this Act dissolves
the marriage of the spouses.

Order for suppwt. 13. (1) In this section and section 14, "spouse" has the meaning
assigned by subsection 2 (1) and includes a former spouse.

(2) A court of competent jurisdiction may, on application by
either or both spouses, makean order requiring one spouse to secure
orpay,or to secureandpay, such lump sumor periodic sums, or such
lump sum and periodic sums as the court thinks reasonable for the
support of

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(a) the other spouse;

(b) any or all children of the marriage; or

(c) the other spouseandany orallchildrenof themarriage.

(3) Where an application is made under subsection (2), thecourt
may, on application by either or both spouses, make an interim order
requiring one spouse to secure or pay, or to secure and pay, such
lump sum or periodic sums, or such lump sum and peridc sums,
as the court thinks reasonable for the support of

(a) the other spouse;

(b) any or all children of the marriage; or

(c) the other spouseandany orallchildrenof the marriage,
pending determination of the application under
subsection (2).

(4) The court may make an order under this section for a definite
or indefinite period or unlil the happening of a specified event and
may impose such otherterms, conditions orrestrictionsin connecrion
therewith as it thinks fit and just.

(5) Inmaking an order underthis section, thecourtshall take into
consideration the condi tion, means, needs and other circumstances
of each spouse and of any child of the marriage for whom support
is sought, including

(a) the length of time the spouses cohabited;

(b) the functions performed by the spouse during the
cohabitation: and

(c) any order, agreementor arrangementrelating to support
of the spouse or child.

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(6) In making an order under this section, the court shall not take
into consideration any misconduct of a spouse in relation to the
marriage.

(7) An order made under this section that provides for the
support of a spouse should -

(a) recognize any economic advantages or disadvantages
to the spouses arising from the marriage or its
breakdown;

(b) apportion between the spouses any financial
consequences arising from the care of any child of the
marriage over and above the obligation apportioned
between the spouses pursuant to subsection (8);

(c) relieve any economic hardship of the spouses arising
from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-
sufficiency of each spouse within areasonable amount
of time.

(8) An order made under this section that provides for the
support of a child of the marriage should

(a) recognize that the spouses have a joint financial
obligation to maintain the child; and

(b) apportion that obligationbetween the spousesacco&ng
to their relativeabilities tocontribute to the performance
of the obligation.

Order for custody. 14. (1) A court may, on application by either or both spouses or
by any other person, make an order respecting the custody of or the
access to, or the castdy of and access to, any or all children of the
marriage.

(2) Where an application is made under subsection (l), the court
may, on application by either orboth spouses or by any other person,
make an interim order respecting the cust~dj; of or the access to, or

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the custody of and access to, any or all children of the marriage
pending determination of the application under subsection (1).

(3) A person, other than a spouse, may not make an application
under subsection (1) or (2) without leave of the court.

(4) The court may make an order under this section granting
custody of, or access to, any or all children of the marriage to any
one or more persons.

(5) Unless the court orders otherwise, a spouse who is granted
access to achild of the marriage has the right to make inquiries, and
to be given information, as to the health, education and welfare of
the child.

(6) The court may make an order under this section for a definite
or indefinite period or until the happening of a specified event and
may impose suchother terms, conditions orrestrictions in connection
therewith as it thmks fit and just

(7) Without limiting the generality of subsection (6), the court
may include in an order under this section a term requiring any
person who has custody of a child of the marriage and who intends
to change the place of residence of that child to notify, at least thirty
daysbefore the changeor within such other periodbefore thechange
as the court may specify, any person who is granted access to that
child of the change, the time at which the change will be made and
the new place of residence of the child.

(8) In making an order under this section, thecourtshall take into
consideration only the best interests of the child of the marriage as
determined by reference to the condition, means, needs and other
circumstances of the child.

(9) In malung an order under this section, the court shallnot take
into consideration the past conduct of any person urdess the conduct
is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give
effect to the principle that a child of the marriage should have as
muchcontact with eachspouseas is consistent with the best interests
of the child and, for that purpose, shall take into consideration the

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willingness of the person for whom custody is sought to facilitate
such contact.

Order for variation 15. (1) A court of competent jurisdiction may make an order
rescission or varying, rescinding or suspending, prospectively or retroactively,
suspension.

(a) a support order or any provision thereof on application
by either or both former spouses; or

(b) acustody order or any provision thereof on application
by either orboth former spousesor by any other person.

(2) A person, other than a former spouse, may not make an
application under paragraph 1 (b) without leave of the court.

(3) The court may include in a variation order any provision that
under this Act could have been included in the order in respect of
which the variation order is sought.

(4) Before the court makes a variation order in respect of a
support order, the court shall satisfy itself that there has been a
change in the condition, means, needs or other circumstances of
either former spouse or of any child of the Inamage for whom
support is or was sought occurring since the making of the support
order or the last varialion order made in respect of that order, as the
case may be, and, in malilng the variation order the court shall take
into consideration that change.

(5) Before the court makes a variation order in respect of a
custody order, the court shall satisfy itself that there has been a
change in the condition means, needs or other circumstances of the
child of the marriage cxcurring since in the making of the custody
order or the last variation order made in respect of that order, as the
case may be, and, in malung the variation order, the court shall take
into consideration only the best interests of the child as determined
by reference to that change.

(6) In making a variation order, the court shall not take into
consideration any conduct that under this Pact could not have been
considered in making the order in respect of which the variario~l
order is sought.

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(7) A variation order varying a support order that provides for
the support of a former spouse should

(a) recognize any economic advantages or disadvantages
to the former spouses arising from the marriage or its
breakdown;

(6) apportion between the former spouses any financial
consequences arising from the care of any child of the
marriage over and above the obligation apportioned
between the spouses pursuant to subsection (8);

(c) relieve any economic hardship of the former spouses
arising from the breakdown of the marri age; and

(d) in so far as practicable promote the economic self-
sufficiency of each spouse within a reasonable period
of time.

(8) A variation order varying a support order that provides for
the support of a chid of the marmiage should

(a) recognize that the former spouse have ajoint financial
obligation to maintain the child; and

(b) apportion that obligation between the former spouses
according to their relative abilities to contrib~te to the
performance of the obligation.

(9) In malung a variation order varying acustody order, the couet
shall give effect to the principle that achiid of the marriage should
have as much contact with each former spouse as is consistent with
the best interests of the child and, for that purpose, where the
variationorderwouldgrant custody ofthechild toaperson who does
not currently have custody, the court shall take into consideration
the willingness of that person to facilitate such contact.

(10) Notwithstanding subsection (I), where a support order
provides for support for a definite period or until the happening of

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a specified event, a court may not, on an application instituted after
the expiration of that period or happening of that event, make a
variation order for the purpose of resuming that support unless the
court is satisfied that

(a) a variation order is necessary to relieve economic
hardshiparising fromachange describedin subsection
(4) that is related to the marriage; and

(b) the changed circumstances, had they existed at the
time of the making of the support order or the last
variation order made in respect of that order, as thecase
may be, would likely have resulted in a different order.

(1 1) Where a court makes a variation order in respect of a sup-
port order or a custody order made by another court, it shall send a
copy of the variation order, certified by ajudge or officerof the court,
to that other court.

Enforcement. 16. An order made under section 13,14 or 15 may be enforced
in like manner as an order of the court or in any other manner
provided for by the laws of Antigua and Barbuda.

APPEALS

Appeal to C m of 17. (1) Subject to subsections (2) and (3), an appeal lies to the
Appeal. Court of Appeal from any judgment or order, whether fmal or

interim, rendered or made by a court under this Act.

(2) No appeal lies from ajudgment granting a divorce on or after
the day on which the divorce takes effect.

(3) No appeal lies from an order made under this Act more than
thlrty days after the day on which the order was ma&.

(4) An appellatecourtora judge thereof may, on special grounds,
either before or after the expiration of the time fixed by subsection
(3) for instituting an appeal, by order extend that time.

(5) The appellate court may

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(a) hsmiss the appeal; or

(b) allow the appeal and

(i) render the judgment or make the order that
ought to have been renderedor made, including
such order or such further or other order as it
deems just, or

(ii) order anew hearing where it deems it necessary
to do so to correct a substantml wrong or
miscarriage of justice.

(6) Except as otherwise provided by this Act or the rules or
regulations, an appeal under this section shall be asserted, heard and
decided according to the ordinary procedure governing appeals to
the appellatecourt from the court rendering thejudgment or making
the order being appealed.

GENERAL

18. A document offered in a proceeding under this Act that proof of signature
purports to be certified or sworn by a judge or an officer of a court OX office.
shall, unless the contrary is proved, be proof of the appointment,
signature or authority of the judge or officer and, in the case of a
doctmentpurporting to be sworn, of the appointment, signature or
authoricy of the person before whom the document purports to be
sworn.

19. (1) The Chief Justice may make rules applicable to my Rules
proceedings under th~s Act in a court or appllate co rn includiag
without limiting the generality of the foregoing rdes

(a) regulating the practice and procedure in the court,
including the addition of persons as parties to the
proceedings;

(b) respecting the conduct and disposition of any
prmdings under this Act without an oral hearing;

(c) regulating the sittings of the court;

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(d) respecting the fixing and awarding of costs;

(e) prescribing and regulating the duties of officers of the
court; and

V ) prescribing andregulating any other matter considered
expedient to attain the ends of justice and carry into
effect die purposes and provisions of this Act.

Fees.

Repeals.

Cap 268.

20. (1) The Minister responsible for legal affairs may by Order
prescribe a fee tobe paid by any person to whom a service is provided
under this Act

21. The Matrimonial Causes Act is repealed.

TRANSITIONAL PROVISIONS

Proceedingsbased 22. Proceedings may be commenced under this Act
on facts arising notwithstanding that the material factsor circumstances givingrise
before commence- to the proceedings or to jurisdiction over the proceedings occurred
ment of Act.

wholly or partly before the day on which this Act comes into force.

Proceedings 23. Proceedings commenced under die Matrimonial Causes Act
commenced before
commencement of (cap 268) beforethe day on which this Act comes into force and not
~ d . finally disposed of before that day shall be dealt with and disposed

of in accordance with that Act as itread immediately before thatday;
as though it had not been repealed.

Variation and 24. Any order made under the Matrimonial Causes Act
enforcement of including any such order made pursuant to section 23 of this Act,
orders prev~ously and any order to the l i e effect made corollary to adecree of divorce
made. granted in Antiguaand Barbudabefore the coming into force of this

Act, may be varied rescinded, suspended or enforced in accordance
with section 15 of this Act as if the order were a support order or
custody order, as the case may require.

Commencement. 25. This Act shall come into force on a day to be fixed by the
Governor-General by proclamation.

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Passed the House of Representatives this P a s d the Senate h i s 5th day of
26th day of Febnrary, 1997. March, 1997.

B. Harris,
Speaker.

M. Pmival,
President.

S. Walker, S. Walker,
Clerk to the House of Representatives. Clerk to the Senate.

Printed at the Government Printing Office, Antigua and Barbuda,
by Rupert Charity, Government Printer

- By Autl1ority. 1997.
800-5.97 / Price $6.80 1
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