General Overview of Divorce in Mauritius:
The rate of Divorce per 1000 Population in 2020 was 1.6 for Mauritius which currently has a population of around 1,274,727. Under the Republic of Mauritius, an individual seeking to get civilly married can elect which type of Matrimonial Regime he/she wants to go for. The chosen matrimonial regime will undoubtedly have an influence or impact on either party’s rights following a divorce.
More often than not, parties involved in a divorce proceeding are left wondering what their rights are following a divorce. However, amidst their puzzled thoughts, one pertinent issue is the Financial Aid from their partner. They often find themselves asking whether their minor child/children or themselves will receive any financial aid, i.e., Alimony.
What is Alimony?
Alimony or Periodical Payment (Pension Alimentaire – un devoir de secours après le divorce as per the Code Civil) is financial support paid by one exspouse to the other and any minor child/children as ordered by a court in a divorce case.Alimony or Periodical Payment (Pension Alimentaire – un devoir de secours après le divorce as per the Code Civil) is financial support paid by one exspouse to the other and any minor child/children as ordered by a court in a divorce case.
Who will pay for the Alimony generally, and under what circumstances?
The spouse who committed a “faute” will generally be the one under the obligation to pay for Alimony for their ex-partner and children or it would be the spouse who is initiating action for a divorce. However, it must be noted that it would be for the Court to decide what it considers to be the reasonable amount to be paid in all the circumstances of the case.
Now in Mauritius, even if you were married under the matrimonial regime of separation of goods, one could still be eligible for Alimony.
Under Article 277 of the Code Civil Mauricien, a financial rescue is provided to the spouse in need by Alimony under the given judgment following the divorce petition or under a subsequent judgment. Alimony under this provision is granted without regard as to “faute” and is governed by the rules set out in Articles 255 and 258 concerning Divorce.
Is it Obligatory to pay Alimony?
The simple answer is No. It is settled in law that alimony is not due as of right to a spouse, and that it is only demandable by the other spouse when it is needed by the party claiming it. Should a spouse require Alimony, then the safest option would be to request same at the outset of their petition.
Could you stop receiving Alimony?
It is indeed possible to not have recourse to Alimony. Should the non-fautif spouse decide to remarry or enter a type of cohabitation with another partner, the fautif spouse will be able to stop paying for Alimony.
Another instance would be, if an accused party, i.e., the one failing to pay the alimony, proves on the balance of probabilities an absolute impossibility to pay for the alimony and that any default on his/her part was not voluntarily, he/she would be able to stop paying for Alimony.
What are your options if a party breaches an order for Alimony ?
Should you be subjected to a non-payment of Alimony, you will have three distinct avenues open to you:
(i) A Civil action;
(ii) A Criminal action; or
(iii) A case of Contempt of Court.
The aggrieved party may choose to proceed with all 3 actions or choose only one from them.
1)A Civil Action
Normally, should you choose to initiate a civil action, you would be able to go for attachment of property as the most realistic option. The aggrieved party will have to first establish that there was an undertaking of a civil debt and then the next step would be to show that there has been a deliberate fraud which has led to the failure of such payment.
2) A Criminal Action
He or she may do so on their own or with the assistance of legal representatives. In this situation, the aggrieved party would report the matter to the Police to initiate criminal action.
Section 261(1) of the Criminal Code states as follows: “Any person who, having been judicially ordered to pay alimony to his spouse or children, voluntarily fails, during two months, to pay the full amount of alimony so ordered to his spouse or children, shall commit an offence and shall, on conviction, be liable to a fine not exceeding 5,000 rupees and to imprisonment for a term not exceeding one year. “
However, one must bear in mind that the disadvantage under this leg is that the Court would not make an order for the Alimony to be paid but instead it provides for a penalty in case of a conviction which would either be a fine or imprisonment. It is also rare for such a failure to instantly lead to imprisonment. Hence, the civil liability of the accused would remain a live issue.
3) A case of Contempt of Court
The aggrieved party/spouse may start an action in civil for contempt of court as not paying the Alimony would be a disobedience to an order of the Court. When an order for Alimony is given, the party who must pay for so gives an undertaking in Court and thus he or she must abide by it. A civil contempt would imply a right to submit to a form of civil execution.
However, one must be careful before electing to lodge a case of Contempt of Court as such a remedy is not made readily by the Court given that the aggrieved party must show that he or she has exhausted all the other avenues available to her for enforcing the payment of Alimony. Such an order will only be granted whereby nothing else has worked. A party would not be committed to prison for contempt unless “the arbitrary and summary interference of the Court was necessary to enable justice to be administered”.
Lavalina D. SAWMY
Barrister at Law | Avocate