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MLF comments on the Divorce and Judicial Act

25.03.2011

LALIT has pleasure in posting the comments of Muvman Liberasyon Fam (MLF) on the newly voted divorce law. The re-hauling of “matrimonial and allied laws” is one of the key points of the new Manifesto for Women's Liberation that the MLF has initiated.

MLF comments on the Divorce and Judicial Separation Act
Overall, MLF commends the changes proposed to the philosophy underpinning the country’s existing divorce law. In particular, the philosophy of the new law leaves behind the fundamentalist religious (Catholic) notion of “faute” of one or both partners being the only justification for divorce; “faute” can still be pleaded, but the grounds in the new law are more modern and enlightened. However, at the same time, we note that the enormous sums of money that change hands, going from the people suffering the unhappiness of divorce to two kinds of lawyers (an attorney and an advocate) show little or no sign of decreasing.

The positive philosophical changes
Firstly, the Muvman Liberasyon Fam welcomes the proposal that divorce be permitted on the rational grounds that the marriage is irretrievably broken down without any “tort” or “faute” having to be shown, embroidered upon, invented, or proven. The change will reflect reality: the real reason that people need to get a divorce is because their marriage has become unhappy. We do not understand why there need be the two year delay.

Secondly, the new law makes provision for divorce after 3 years, instead of 5 in the old law, of living apart. Previously the spouse seeking a divorce on the grounds of “separation” had to “pran fot”, with certain legal consequences, whereas this is no longer necessary, which is another welcome change.

We would have preferred one year’s living separately. The first draft bill made provision for only 2 years of living apart. So quite obviously, concessions have been made to fundamentalist lobbies rather than looking at the real oppressive effects of divorce laws on people which we condemn.

Thirdly, and this is perhaps important for a couple with a fair amount of property who are seeking divorce, we welcome the third new ground for divorce: mutual consent. By this ground, the spouses together prepare and present a motion to the Court. Under the existing law such an idea would constitute “conspiracy”.

Fourthly, provisional divorce will become permanent automatically after 3 months unless formally challenged. This is an improvement although we note that the first draft was far more progressive as it did away with the concept of the confusing state of “provisional divorce” - yet another retrograde concession between the Draft Bill and the law voted.

Heavy Lawyers’ Fees
What we really deplore in the new divorce law, is that nothing has been done to decrease the costs of paying for an attorney and advocate which makes a divorce out of reach for most women and men. The Muvman Liberasyon Fam deplores the fact that the legal profession will still, even after the new law, rake in tens of millions of rupees a year out of divorce proceedings. The voted law provides no reasonably-priced divorce. This is possible in many countries. You can fill out a form and swear an affidavit and register it, in Australia for example. Or in China you can go to the very same Civil Status Office that for a small fee registered your marriage and solemnly declare, for another small fee, that your marriage is irretrievably broken down because it is no longer “harmonious”. We would welcome changes that made divorce less costly. We are aware that in Mauritius a spouse earning less that Rs 5,000 per month is allocated a barrister and an attorney, whom the State pays. But women earning between Rs5,000 and, say, Rs25,000 (which is the vast majority of women) find it very difficult to produce Rs20,000.
The only exception is to this in the new divorce law, is in the case of “mutual consent” where a couple will be able to share the costs of an attorney. For the rest of us women and men, divorce will remain very difficult because of the cost. Those earning extremely low incomes can get free lawyers, but many ordinary working women fall outside this means test. Which means that the new divorce law does not take into account the reality that most women and men are living in and will not put a stop to the reality where men and women are not free to leave unhappy relationships, and form new ones freely should they so wish.
We will be forced into a situation where we live with a partner who we are not civilly married to because we cannot afford a divorce.
We believe that the new law at the very least should have included the possibility for anyone seeking divorce to be allowed to take either an attorney or an advocate, and not be required to take both.
Rajni Lallah