Family Law Comparative Guide -

1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

In The Bahamas, the legislative framework mainly includes:

the Matrimonial Causes Act and the Matrimonial Causes Rules;
the Child Protection Act;
the Magistrate Act (Chapter 54); and
the Adoption and Children's Act

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

The Hague Convention on Civil Aspects of International Child Abduction has application in The Bahamas. It is given effect in The Bahamas by the International Child Abduction Act, Chapter 137.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

The judiciary and the police.

Judiciary: The court has the power to make orders with respect to divorce proceedings and judicial separation. The court can also make specific orders, including but not limited to:

orders for adoption, custody, access, payment of maintenance and payment of arrears of maintenance;
restraining orders; and
injunctions.

Further, if a person is found to be in contempt of an order, the court has the power to commit the person to prison and/or to impose a fine.

With respect to children, the court will act in the best interests of the children. In matters pertaining to divorce/ancillary relief proceedings, the court will strive to achieve fairness.

Police: A party that finds himself or herself in a domestic violence situation can seek assistance from the police, which may result in an arrest of the offending party. Further, should a power of arrest be attached to an injunction or a protection order, the police will arrest the party in breach of the same.

Both the court and the police will act fairly and judiciously in carrying out their respective functions.

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

Yes. This may be achieved in one of two ways:

The Reciprocal Enforcement of Judgments Act 1924 (REJA) allows for the enforcement of judgments obtained in certain specific foreign jurisdictions, including Australia, Barbados, Belize, Bermuda, Guyana, Jamaica, the Leeward Islands, St Lucia, Trinidad & Tobago and the United Kingdom.
If the judgment is obtained in a jurisdiction not listed in the REJA, common law principles will govern the proceedings to be commenced in the Supreme Court for enforcement of that judgment. The procedure involves filing an application and any requisite notices such that the court can determine whether the judgment should be enforced.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

The court will have jurisdiction (for divorce or judicial separation) if either of the parties:

is domiciled in The Bahamas on the date on which the proceedings begin; or
was habitually resident in The Bahamas throughout the three-year period ending on this date.

These requirements can be satisfied by producing evidence such as:

confirmation of residency status;
proof of home ownership or lease;
utility bills; or
salary slips.

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

In this regard the court will consider the principle for forum non conveniens where the court has inherent jurisdiction to grant a stay where it is satisfied that there is another available forum which is clearly more appropriate than The Bahamas. The natural forum will be that which has the most "real and substantial" connection with the matter and the parties. Here the court will consider factors such as domicile and the location of assets including real property.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

No.

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

In The Bahamas, parties in this type of relationship are not afforded special rights in the event of relationship breakdown. However, if prior to the breakdown of their relationship the parties entered into a contractual arrangement, this agreement may provide adequate protection in the event of the breakdown of the relationship.

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

No.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

No.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

A marriage is considered legal and valid:

if the marriage is conducted in accordance with the Marriage Act (parties consent to be married before two witnesses, attained the age of 18, neither party was already lawfully married and solemnised before a marriage officer); and
the parties are respectively male and female

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

No.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Before a marriage is solemnised in The Bahamas, the parties must comply with the Marriage Act and must obtain a marriage licence. The marriage ceremony must be carried out by a registered marriage officer and a marriage certificate must be issued in accordance with the Marriage Act. Parties seeking to rely on a foreign marriage certificate issued outside of The Bahamas must first submit the same to the Ministry of Foreign Affairs for authentication.

4.4 Does a specific marital property regime apply in your jurisdiction?

English common law principles apply to the division of marital property in The Bahamas. The overarching objective is to achieve fairness. The Matrimonial Causes Act also sets out the statutory framework for dealing with these matters.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

These types of agreements become a factor to be considered when the court exercises its discretion pursuant to Section 29 of the Matrimonial Causes Act. These agreements are viewed as persuasive evidence of the intention of the parties.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

For a court to uphold such agreements, it must be satisfied of the following:

The parties voluntarily entered into the agreement. A prenuptial agreement should be signed well in advance of the wedding (typically three weeks to one month before the wedding);
Both parties understand the consequences of the agreement (each party had separate legal advice and understood the rights that he or she was giving up; sufficient disclosure from the other; clear intention to be bound by the agreement); and
The agreement is fair based on Section 29 of the Matrimonial Causes Act and common law principles.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

Parties should receive advice prior to the execution of these types of agreements and certainly prior to relocating, as different jurisdictions may not give effect to pre-nuptial or post-nuptial agreements or have strict procedural requirements that must be met before an agreement will be declared valid. Further, parties may also have to commence proceedings in more than one jurisdiction depending on the lex situs of property (land/matrimonial home), regardless of the terms of the agreement.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

The Matrimonial Causes Act has no application to same-sex couples whatsoever; and currently there is no legislation which protects and governs the rights of same-sex couples in The Bahamas.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

Pre & Post nuptials are formalized before the breakdown of the marriage. Separation agreements are formalized once the marriage has broken down.

These agreements must still be approved and upheld by the court before being incorporated into a court order.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

The court has jurisdiction if either of the parties to the marriage:

is domiciled in The Bahamas on the date on which the proceedings begin; or
was habitually resident in The Bahamas throughout the three-year period ending on that date.

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

A petition for divorce may be presented to the court by either the husband or the wife on the grounds that, since the celebration of the marriage, the respondent has:

committed adultery;
treated the petitioner with cruelty;
deserted the petitioner for a continuous period of at least two years immediately preceding presentation of the petition;
lived separate and apart from the petitioner for a continuous period of at least five years immediately preceding presentation of the petition; or
been guilty of a homosexual act or sodomy, or had sexual relations with an animal.

A wife may also petition on the grounds that, since the celebration of the marriage, her husband has been guilty of rape.

The parties prove their grounds by giving evidence on oath. They may also be cross-examined.

6.3 How does the divorce process typically unfold and what is the general timeline?

The divorce process commences with the filing and service of a petition by the petitioner. The respondent is given an opportunity to respond and the divorce petition is heard within two to three months, depending on whether the matter is contested. Following the hearing of the divorce petition, the judge sets the trial of the ancillary matters down for hearing. Both parties must file affidavits of means; and where the matter proceeds to trial on a contested basis, there will be cross-examination of both parties. Certain interlocutory applications may take place prior to the substantive trial. Once both sides have given their evidence, written submissions are made prior to delivery of the decision by the judge. The time it takes to complete the trial of the ancillary matters is heavily dependent on the position of the parties and the court's timetable. The general timeline for a divorce, from filing of the petition to the pronouncement of a decision on the ancillary matters, is one to one and a half years.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

If matters pertaining to the children remain ongoing, the divorce cannot be finalised.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

No, non-judicial divorces are not available.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Yes, foreign divorces are recognised where:

one or both parties were domiciled in the relevant country at the time of the decree, order or enactment;
the court or legislature of that country has exercised jurisdiction in any case on the following grounds:
- one or both parties were resident in that country for a continuous period of not less than three years ending on the date of commencement of the proceedings;
- one or both of the parties to the marriage are nationals or citizens of that country or the sovereign state of which that country forms part;
- the wife has been deserted by her husband, or the husband has been deported, and the husband immediately before the desertion or deportation was domiciled in that country;
- the wife was legally separated from her husband, whether by order of a competent court or by agreement, and the husband at the date of the order or agreement was domiciled in that country; or
- in case of nullity of marriage on any grounds existing at the time of the marriage on the basis of the celebration of the marriage in that country; or
the decree or order or enactment is recognised as valid in the courts of a country in which at least one of the parties to the marriage is domiciled.

The Matrimonial Causes Act does not make provision for religious divorces in The Bahamas.

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

Judicial separation is available. A petition for judicial separation may be brought by a husband or wife on any of the grounds on which a petition for divorce is brought.

Nullity proceedings are also available. A petition may be brought by a husband or wife requesting that the marriage be declared null and void on any of the following grounds:

The marriage is not in accordance with the Marriage Act;
At the time of the marriage, either party was already lawfully married;
The parties are not respectively male and female;
In the case of a polygamous marriage entered into outside The Bahamas, either party was domiciled in The Bahamas;
The marriage has not been consummated owing to the incapacity of either party to consummate it;
The marriage not been consummated owing to the wilful lawful refusal of the respondent to consummate it;
Either party to the marriage did not validly consent to it whether in consequence of duress, mistake, unsoundness of mind or otherwise;
At the time of the marriage, either party to the marriage thought to be capable of giving consent was suffering from a mental disorder in accordance with the Mental Health Act to such extent as to be unfit for marriage;
At the time of the marriage, the respondent was suffering from a sexually transmitted disease; or
At the time of the marriage, the respondent was pregnant by someone other than the petitioner.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

Within The Bahamas, the petition must be served personally with all of the necessary forms prescribed by the rules. If the opposing party lives overseas, the petition and the prescribed forms may be served outside the jurisdiction without leave of the court by serving them personally on the opposing party. However, if this mode is used, an affidavit of service must be sworn which sets out the details of service, including how the server was able to recognise the opposing party. The Matrimonial Causes Rules also allow for service to take place outside the jurisdiction pursuant to specific rules of the Supreme Court of England.

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

No, it does not. However, the court will invite the parties to try to attempt to resolve some of the matters where at all possible.

7.2 Spousal and child maintenance:

What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
When do spousal and child maintenance expire?
What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
Which bodies are responsible for issuing child support orders in your jurisdiction?
Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?
Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

The court can make orders for:

periodical payments;
secured periodical payments; or
a lump sum.

There is no specific formula to calculate the amounts to be paid. In deciding how to exercise its powers to make the above orders, the court will have regard to all circumstances of the case, including the factors set out in Sections 29(1), (2) and (3) of the Matrimonial Causes Act.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

Spousal maintenance: Under Section 29(1) of the Matrimonial Causes Act, the court is duty bound to consider all of the circumstances of the case including the following when making orders for spousal and child maintenance:

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;
the parties' standard of living;
the age of the parties and the duration of 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
the value to either party of any benefit (pension) which that party will lose by reason of the dissolution.

The court must 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 each party had properly discharged his or her financial obligations and responsibility towards the other.

(c) When do spousal and child maintenance expire?

No expiration date for the payment of spousal maintenance (periodical payments) is specified in Bahamian law. The term to be specified in any order shall be such term as the court thinks fit.

Child maintenance expires at 18, unless:

the child is enrolled in further education (eg, college, vocational school); or
there are other special circumstances which require the payments to continue (eg, disability).

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

Spousal maintenance does not survive the death of the paying party. Child maintenance will cease to have effect on the death of the person liable unless there are arrears due at the time of death. If a party is adjudicated bankrupt, an application can be made to vary the child support order based on the change of circumstances.

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

The court issues the child support order. Once this has been done, it is filed at the registry.

(f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?

All parents have a duty to contribute to the child's maintenance.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

Yes, a child can if the person liable to maintain him or her has failed to do.

Also, a child (adult or minor) may make an application for financial provision from a deceased's estate on the grounds that the deceased person's estate effected by his or her will is not such as to make reasonable financial provision for him/her. ‘Reasonable financial provision' means such financial provision as it would be reasonable in all the circumstances for the applicant to receive for his or her maintenance.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

Whether one of the parties will relocate; and
The ease of enforcing the order for child support.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

Typically, the applicant will bring committal proceedings where there has been a wilful failure to comply with the order for child support. As a result, the respondent being imprisoned for a fixed period. Parties may also enforce by a writ of fieri facias or garnishee proceedings.

7.3 Asset division:
What orders can the court make in relation to the division of assets on divorce or judicial separation?
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?
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?
Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
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?
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?
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?

(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.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

The child's welfare will be the paramount consideration; and any delay in determining issues relating to the child is likely to be prejudicial to the welfare of the child.

In deciding which orders to make in this regard, the court will consider factors such as:

the ascertainable wishes and feelings of the child (considering his or her age and understanding);
the physical, emotional and educational needs of the child;
the likely effect of any changes in the child's circumstances;
the child's age, sex, background and any other circumstances relevant to the matter;
any harm that the child has suffered or is at risk of suffering; and
where relevant, the capacity of the child's parents, guardians or other persons involved in the care of the child in meeting his or her needs.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

Where a child is born to an unmarried couple the mother of that child is automatically made guardian and shall have custody of that child. The father must apply to the court for custody. No specific protections are given to same-sex couples in The Bahamas.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

The court will encourage the parties to settle matters with respect to the children where possible, but will not take the lead to facilitate settlement.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

The court will engage the necessary experts for the particular matter at hand. These can include social workers, clinical psychologists and other trained professionals.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

In deciding on any such application, the court will apply the welfare principle and consider the factors listed in question 8.1.

8.6 What regime applies to the international abduction of children in your jurisdiction?

The International Child Abduction Act (Chapter 137 of the Statute Laws of the Commonwealth of The Bahamas) gives effect to the Hague Convention on the Civil Aspects of International Child Abduction and the matters connected therewith.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

There are no laws dealing with surrogacy in The Bahamas.

9.2 Are surrogacy arrangements legal in your jurisdiction?

Currently there are no laws regulating or preventing these types of arrangements in The Bahamas.

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

N/A.

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

The Adoption of Children Act and the Adoption of Children Rules govern adoption. In addition the court will be guided by the Child Protection Act.

Before making an adoption order, the court must be satisfied that:

every person whose consent is necessary and not dispensed with understands that the adoption order will be permanent and will deprive him or her of his or her parental rights;
the order, if made, will be for the welfare of the child, with due consideration given to the wishes of the child having regard to his or her age and understanding; and
the applicant has not received or agreed to receive – and no person has made or given, or agreed to make or give to the applicant – payment or other reward in consideration of the adoption, except as the court may sanction.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

No. The act does not extend the right to adopt to same-sex couples.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

Parties can agree to choose mediation and arbitration to assist with the resolution of specific family matters.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

ADR will succeed only if the parties are committed to the process. Each case is different and, depending on the issues and/or the disposition of the parties, ADR may not be suitable. There are no significant cost savings associated with ADR, as the parties must pay the fees of the mediator/arbitrator and of their respective attorneys. Irrespective of any agreement reached through ADR:

proceedings must be commenced in the Supreme Court or Magistrates Court and with respect to divorce proceedings the petitioner is still required to give evidence and prove the grounds set out in the petition for divorce; and
the court must approve any agreement made between the parties before it becomes an order of the court.

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

The habitual residence of the child/children and the parties (parents);
The ease of enforcement/recognition of orders should one of the parties relocate;
Access/visitation; and
Abduction of the child.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

An order of protection can be obtained by inter alia the spouse or partner of the person against whom the order is sought where the domestic violence was committed or against that spouse, partner or child of the household.

This type of order can include provisions restraining the respondent:

from being on premises on which complainant for the protection order or child or member of the household in respect of whom the order was made resides;
from being on premises that are the place of work of the complainant or the place of education or work of the child or member of the household in respect of whom the order was made;
from being in a specific locality;
from being within a specified distance of the complainant or child or member of the household in respect of whom the order was made; and/or
where the person continues to reside with the complainant from entering or remaining on the premises, while intoxicated or under the influence.

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

See question 11.2.

11.3 How are these orders enforced and by whom?

A power of arrest can be attached to an order for protection. Thus, the police will necessarily be involved.

11.4 How soon will the party's application be dealt with in these circumstances?

An urgent application will be heard as soon as reasonably possible. If the other party breaches the order (and there is a power of arrest attached), he or she will be brought before the court within 24 hours of his or her arrest.

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

The court's powers with respect to placing a child in the ultimate care of the Department of Social Services are specifically set out in the Child Protection Act.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

In our experience, it is rare for both parties to be willing to negotiate in good faith and amicably resolve the issues in dispute. Generally, the landscape remains adversarial.

We have also noted that fathers are increasingly seeking orders which afford them more time with their children or access arrangements where they are seeking equal access. Very recently, more judges were appointed to the Family Division, which is expected to expedite matters.

No new developments are anticipated in the next 12 months. However, there is a push for the creation of a separate family court system which would be less adversarial and in which matters could be resolved in a more efficient manner, to prevent delays.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

From the outset, both parties should have a clear understanding of:

the emotional stress (to all members of the family) and the true cost of divorce litigation; and
the court system and local laws/legal principles.

This is especially relevant where:

the parties are more familiar with the court processes in other jurisdictions, such as the United States, Canada or Europe; or
the parties' understanding of the process is based on what they see on television programmes etc.

Having an unfiltered appreciation of the entire process will in most cases encourage the parties to make a good-faith effort to negotiate and resolve some, if not all, of their issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Bahamas: Family Law Comparative Guide