Answer ... (a) What orders can the court make in relation to the division of assets on divorce or judicial separation?
The court can make certain property adjustment orders, such as:
- an order transferring property to the other party (or an order to transfer property to a child of the family or to another person specified in the order);
- an order that the matrimonial home be sold;
- an order vesting the matrimonial home in the parties to the marriage in such shares as court deems fit;
- an order that one party can occupy the matrimonial home;
- an order that a settlement of such property be made to the satisfaction of the court for the benefit of the other party to the marriage, the children of the family or both;
- an order varying any pre-nuptial or post-nuptial settlement for the benefit of the parties to the marriage or the children of the family, or both; or
- an order extinguishing or reducing the interest of either party to the marriage under such settlement.
The court can also make financial provisions orders that require either party to the marriage to make periodical payments or payments of a lump sum or sums.
(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
The objective of the division of assets upon the dissolution of the marriage is to achieve fairness. The court will also examine the needs of the parties and will be guided by the ‘equal sharing’ principle. It will look at all the circumstances of the case including but not limited to:
- the income, earning capacity, property and other financial resources which each party to the marriage has or is likely to have in the future;
- the financial needs, obligations and responsibilities which each party to the marriage has or is likely to have in the future;
- standard of living;
- the age of the parties and the duration of the marriage;
- any physical or mental disability of either party to the marriage;
- the contribution made by each party to the welfare of the family, including contributions made by looking after the home or caring for the family; and
- in the case of proceedings for divorce or nullity of marriage, the value to either party of any benefit (eg, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
The court will exercise its powers to place the parties – insofar as it is practicable and, having regard to their conduct, just to do so – in the financial position which they would have been in:
- had the marriage not broken down; and
- had each party properly discharged his or her financial obligations and responsibilities towards the other.
(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
Unless the conduct is egregious, the court will not reduce the financial provision because of supposed misbehaviour in the course of an unhappy marriage.
(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
It is common to seek professional valuations of property, especially the matrimonial home. In contentious high-net-worth divorce matters, it is common to obtain valuations of companies, property and so on, and to rely of the evidence of forensic accountants.
(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
This depends on whether the family home is the only available asset. Obviously, both parties (and any children) must have a roof over their head. Where only one party has the ability to secure accommodation, fairness may dictate that the sale of the house be deferred to a date in the future so as to accommodate the needs of the former spouse and/or children.
(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
Trusts are recognised in The Bahamas.
If it is proven that the trust assets are owned beneficially by one of the parties to the marriage, or that one of the parties to the marriage was involved in the settlement of the trust, the assets will fall to be considered in accordance with Section 29 of the Matrimonial Causes Act and may be subject to sharing.
(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
See question 7.2(i).
(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
Ultimately, the parties cannot oust the jurisdiction of the court. The court must approve any agreements made between the parties; if approved, these ‘agreements’ are then incorporated into the terms of an order which the judge and counsel sign. The order is subsequently filed at the registry.
(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?
See section 6.6 with respect to recognition above. The court will typically make financial orders upon an application by one of the parties to the marriage where there is land or some other asset based in The Bahamas.