Resources

How can I get a Divorce?

Divorce law in Bermuda is changing.

In April 2023, legislation was passed with the aim to reduce animosity between separating couples from the outset by making it easier to obtain a divorce.

Under the new rules, it is no longer necessary for a spouse to “blame” the other or to prove unreasonable conduct. Instead, the new no-fault provisions require a statement that the marriage has irretrievably broken down. Defended or contested divorces will therefore be extremely rare and likely limited to challenges to the Court’s jurisdiction.

To provide couples with a period of reflection, there will be a minimum time frame of 12 weeks between the start of proceedings and the Conditional Divorce Order (previously Decree Nisi). After that, following a further 8-week period, an application for the Final Order for divorce (formerly Decree Absolute) will be possible.

With these new timescales, the divorce process could take 5 months, and it will remain important for separating couples to discuss and address parenting issues and financial matters once the decision to divorce is made, with the right information and appropriate advice.

A person may apply for a divorce where they are domiciled in Bermuda, or in circumstances where they have been resident on the Islands for 12 months (whether or not they are Bermudian) provided that they have been married for 3 years, subject to limited exceptions.

When facing difficult times, you need the best advice available. Our experienced team of family law specialists can help you navigate the divorce process.

Financial settlements after divorce

Our specialist attorneys at Richards have considerable experience in all aspects of financial disputes, with a track record of achieving outstanding results acting for high-net-worth clients. We also have a reputation for assisting clients in complex matters including cases with complicated Trust and Company structures.

We will provide early realistic advice, establishing a clear pathway to success from the very first meeting.

How will the Court share our assets?

The Court has a wide range of powers to make Orders for financial provisions on divorce and may make any one, or more than one, of the following Orders:

• Monthly maintenance payments;
• Lump sum(s) including for the benefit of a child;
• Transfer of property to the other party, to a child of the family, or to a third person for the
  benefit of a child of the family;
• Settlement of specific property for the benefit of the other party and/or children of the
  Family;
• Variation of any nuptial settlement or trust which was established for the benefit of a party
  to the marriage.

In deciding what Orders to make the Court will consider:

• The financial resources of the parties, including their income and assets;
• The relative needs of the parties, including their respective needs in the foreseeable future;
• The standard of living enjoyed during the marriage;
• The ages of the parties and the length of marriage;
• Any disability which the parties may be suffering from;
• The relative contributions made to the welfare of the family;
• The value of any benefit either party may lose by reason of the divorce;

How will those factors be applied?

The sole objective in financial cases is to achieve a fair result.

The Courts have made clear that is assessing fairness, they are to apply a non-discriminatory approach to the roles of bread-winner and home-maker. Typically, each partner is to be viewed as contributing equally to the welfare of the family.

In distributing assets fairly, a Court will consider three overlapping concepts:

1. Needs
2. Compensation (for any financial disadvantage caused by the marriage); and
3. Sharing.

With respect to sharing, it has now long been established that when the partnership ends each party is entitled to an equal share of the assets created during the relationship, unless there is good reason to the contrary.

One reason why a Court might depart from equality is the source of the assets; for example, where the assets were gifted or inherited, or where the property was acquired prior to the marriage, or after the parties had separated. These assets are typically referred to as non-matrimonial property.

The significance of non-matrimonial property will be fact-specific and discretionary. It is not automatically ring-fenced. Factors to be taken into account will include the length of the marriage and the needs of the parties. Where the needs of the parties require an equal division of the assets, the source of the assets is likely to have insignificant weight.

Equally, in cases involving less assets, the Courts may look to stretch the assets to meet the needs of the parties, particularly where children are involved.

Trust assets
As Bermuda is an offshore jurisdiction, attorneys at Richards routinely advise on assets held in complex trust structures. There are typically two approaches adopted by a spouse seeking to unlock trust assets where the other partner is a beneficiary:

• Where the trust is considered a nuptial settlement (generally where the Trust was established in contemplation of the marriage for the benefit of the parties or their children), the Court has wide ranging powers to vary the terms for the benefit of the other spouse or child of the family;
• Where it can be shown that the assets in a trust are a financial resource to a spouse who is a beneficiary of the trust, the Court will take the benefit into account when determining what Orders to make. The court may also provide judicial encouragement to the trustees to make funds available to the Applicant.

Congratulations on your impending marriage! Amongst all the planning for the wedding and your future, the last thing you may want to talk about is a prenuptial agreement. However, more and more couples are having that conversation to provide some certainty and clarity should the unthinkable occur.

There are many reasons why a prenuptial agreement might be suitable for you – one of you may have substantial wealth created before the marriage, you may be likely to receive a significant inheritance, or you may be the beneficiary of family trusts.

Although talking to your partner about these types of agreements may be uncomfortable, it is important that you do so early on as drafting the agreement can take some time and ideally it should be signed long before the wedding date.

Utilizing experienced attorneys who understand the sensitivities of a prenuptial agreement and who can act with the necessary discretion and respect can ensure the entire process supports the marriage rather than undermines it.

Understanding the law in Bermuda and what is required will also aid those tricky discussions.

It is important to note that although prenuptial agreements are not 100% binding the Bermuda Courts will uphold such agreements where they are fair, and the terms were fully understood by both parties.

Are prenuptial agreements binding in Bermuda?

Privy Council decisions are binding whether or not the appeal is from Bermuda. In addition, the Bermuda Courts pay great respect to the English Court’s construction of the law. Decisions of the Supreme Court of the UK are highly persuasive as to the approach in Bermuda. The Privy Council and the Supreme Court have to date, taken slightly different approaches to agreements which govern arrangements post-separation leading to some uncertainty as to how a Bermuda Court will deal with such matters.

Following a UK Supreme Court judgment in 2010 it was determined that a Court should give effect to both prenuptial and postnuptial agreements that are freely entered into by each party with a full appreciation of its implications, unless in the circumstances it would be unfair to hold the parties to their agreement. The UK Supreme Court therefore established a rebuttable presumption that the Court should give effect to pre- and postnuptial agreements. This decision is therefore highly persuasive of the approach to be applied in Bermuda.

In an earlier Privy Council decision, which is binding in Bermuda, the Board considered the legal position regarding the enforceability of a postnuptial agreement (an agreement entered into after the wedding) and held that such agreements were ‘maintenance agreements’ and therefore binding and enforceable. Postnuptial agreements could only be varied if circumstances have changed or where inadequate provision was made for any child of the marriage.

Although there are no recorded cases on the enforceability of a prenuptial agreement in Bermuda, it is expected that the Courts will uphold agreements which are freely entered into by each party with a full appreciation of its implications, unless in the circumstances it would be unfair to do so. Postnuptial agreements, i.e. agreements entered into after the marriage, would be binding unless the circumstances have changed.

To ensure agreements are as watertight as possible, it is desirable that discussions take place at the earliest opportunity, that there is an exchange of full and frank disclosure of the parties’ financial circumstances and that each partner receive independent legal advice. Moreover, given the potential inconsistency between the approach to agreements made before the marriage and after the wedding has taken place, we typically advise that both a prenuptial agreement and a postnuptial agreement are entered into in similar language to provide as much certainty as possible.

Who looks after the children after we separate?

When children are involved in your separation, it is critical that issues surrounding their needs are handled with sensitivity. Our experienced attorneys will manage every case with skill, compassion and discretion.

Our specialist team has considerable expertise in all types of family disputes, whether it be living arrangements including Custody, Care and Control and Access, child maintenance, relocation abroad, and schooling.

Whatever the nature of the dispute, it is almost always best if issues regarding children can be resolved by agreement either through a mediated settlement (with or without other child experts) or the Collaborative Law process (hyperlink). Where agreement is not possible, our team have experience acting for parents in the Magistrates Court, Supreme Court or Court of Appeal and have appeared successfully in many of the leading cases, which have influenced the current legal landscape in Bermuda.

The primary issues for determination regarding the living arrangements for children following separation are Custody, Care and Control, and Access.

Custody refers to who makes the important decisions for children. Typically, those decisions relate to their education, medical needs and religious upbringing. In Bermuda, given the transient nature of the Island, custody decisions often also include deciding where a child should live, including any proposal to move children abroad.

In most situations, parents have joint Custody providing them with an equal entitlement to information regarding their children and an equal say on major decisions. Where agreement cannot be reached between parents, a Court can be asked to resolve those issues.

Care and Control means who the children live with primarily. There is no presumption or starting point as to which parent a child should live with after separation and living arrangements will be determined by what is in the child’s best interests. In recent years, and given the small geographical size of Bermuda, it has become increasingly common for parents to share Care and Control. This does not necessarily mean an equal split of time but reflects a broadly shared arrangement where a child spends significant periods of time at each parent’s home.

Where one parent has sole Care and Control, the other parent will have Access to the children, i.e. an Order setting out when the child will visit or stay with the other parent. There are no set arrangements for Access and a schedule can either be general (for example, reasonable Access as the parents may agree) or defined where specific times and days are set out in a Court Order.

Can I leave the island with my children?

With very few exceptions, a parent cannot relocate with a child outside of Bermuda without the other parent’s express consent or without a Court Order granting permission. If a parent acts unilaterally in removing a child there can be serious consequences including Court proceedings and Orders for the child’s return.

Applications to remove children from Bermuda permanently can be extremely complex and require the parent wishing to leave to produce a detailed plan setting out why the move is in the child’s best interests.

Our attorneys have considerable experience in these types of cases, having appeared successfully in many of the leading Court cases in Bermuda which have helped shape the law in this area.

KAB v the Attorney General and KT Civil Appeal No 7 of 2019

Spousal Maintenance

Interim Payments
The Court may Order one party to make monthly payments to the other spouse for their support on an interim basis. The Court can backdate the payments to the date of the divorce application, but such payments will cease upon the grant of the final Order for divorce or the dismissal of the divorce application.

The Court can grant interim maintenance Orders where there is a short-term need to give immediate assistance to a financially weaker party after a divorce application has been issued. The purpose is to meet the Applicant’s immediate needs.

The amount of spousal maintenance will be determined by what the Court considers to be fair or reasonable. The Court will consider the needs on a “rough and ready” basis, having regard to the standard of living during the marriage; although it is accepted that the exercise is not merely to replicate that standard.

The Court will examine the submitted budget critically for any exaggeration and will consider any disclosure or evidence. It will also consider statements by the financially stronger party as to why they cannot afford to pay but will make robust assumptions where their evidence is deficient.

See TM and CM [2018] SC (Bda) 80 Div where attorneys for Richards successfully appeared.

Can I get my spouse to pay for my legal fees?
As part of an interim maintenance award, the Court may also Order that such monthly payments should include an award for the Applicant’s ongoing legal fees where it can be shown that they do not have the financial resources to meet those legal costs.

Long term spousal maintenance payments
The Court has similar powers to Order ongoing monthly payments to support a spouse financially even after the divorce is finalised.

The Court in Bermuda has no power to dismiss an application for maintenance of its own volition to achieve what is known as a clean break (i.e. an Order which brings finality to proceedings and prevents any further applications). Nonetheless, the Court, in applying long established principles, accepts that finality between the parties is a desirable outcome and that an end to further litigation should be encouraged.

The Bermuda Courts recently confirmed the position on spousal Maintenance in a case where one of Richards’ attorneys appeared successfully (See CRMR and KLR [2019] SC ((Bda) 7 Div)

It is now accepted, following that case, that a maintenance award should only be made by reference to needs.

Spousal maintenance will be appropriate where it can be shown that choices made during the marriage have created future needs on the part of the applicant. The Court will consider, in particular, the length of the marriage and whether the parties have children.

In assessing the amount of maintenance to be paid monthly, the marital standard of living will be relevant but is not decisive. That standard will need to be weighed against the objective of eventual independence and the desire to achieve a clean break.

A judge will examine the individual items in the applicant’s income budget but also stand back and look at the global total to ask if it represents a fair proportion of the Respondent’s available income that should go to the support of their former spouse.

In terms of the length of the award, the Court is encouraged to consider a clean break and will assess the appropriate timelines for an applicant to transition to independence. A degree of (not undue) hardship in making the transition to independence is acceptable.

Child Maintenance

There are various options available to Applicants who wish to seek child maintenance depending on whether the parents are married or unmarried. Although the legal position is slightly different depending on marital status or the Court applied to, it has been held that the differing provisions are concurrent jurisdictions and that each application, in whichever Court it is brought, should adopt a similar approach to provide consistency.

The general principles to be applied are that each parent has an equal obligation to contribute financially to the support of their child and that these obligations should be apportioned depending on each parties’ ability to contribute.

There is therefore no prescribed formula to calculate the quantum of child maintenance and each case will be decided on its own facts with the Court exercising its discretion.

In applying that discretion, the Courts will consider the financial needs of the child, the income, and financial resources of the parents, and the standard of living enjoyed by the family before the breakdown of the relationship.

Case law has provided guidance and as a general principle the Court must seek to balance between the needs of the child and the means of the parties, while attempting to ensure that the child’s best interests are met.

At Richards, we advise our clients on the full range of dispute resolution options that can be pursued, encouraging non-contentious settlement where possible. We will not embroil you in contentious proceedings simply for the sake of it. It is always advisable to resolve family disputes by agreement.

The Collaborative Law process is a system of negotiation that can be utilised to resolve a range of legal disputes amongst families from prenuptial agreements to divorce settlements. Each party appoints their own lawyer and then all parties meet, with their lawyers present, with a view to resolving the dispute amicably.

In using this method of dispute resolution parties, with the guidance and support of their lawyers, are able to reach a settlement in a less contentious manner than going to Court. The ethos of the process is to find an amicable resolution that will meet both parties needs, and their children and who still want to co-parent in the future. The process encourages and gives parties more autonomy and control, compared to traditional litigation, where at the end a Judge will dictate the outcome. Whilst the production of full and frank financial disclosure is a prerequisite to the process, this is often done in a quicker and in a more costs effective manner compared to Court. Collaborative Law clients, with their lawyers will help set the agenda for each meeting, thus retaining full control over the process. Clients and their lawyers are focused on constructive settlement options that meet the needs of the family. The process is overall less contentions, far quicker than traditional Court litigation and is more cost efficient.

Attorneys at Richards have a high rate of success in using alternative dispute resolution techniques to achieve a mediated settlement. Examples of our track record include the following:

For more information please visit the web site for the Collaborative Law Alliance of Bermuda at www.cla.bm or read their brochure on Collaborative Law.