The Family (Marriage and Divorce) Amendment Law
The Family (Marriage and Divorce) Amendment Law
On 22nd June 2015, the draft Family (Marriage and Divorce) Amendment Law was approved by the TRNC Parliament. The Amendment Law constitutes a significant overhaul of the previous Family (Marriage and Divorce) Law which has been in force since 1998. According to the report accompanying the Amendment Law which was read out in Parliament, the aim of the Amendment Law is to minimise the difficulties experienced by parties entering into a marriage or going through a divorce and to bring the legislation into line with modern legal principles based on those set out in the United Nations Convention on the Rights of the Child, the United Nations Convention to Eliminate All Forms of Discrimination Against Women and the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.
In relation to marriage, the main changes are as follows:
Under previous legislation, the general rule was that anyone under the age of 18 is not able to marry. However, in special circumstances a woman between the ages of 16-18 could marry with the consent of the court. This has now been changed so that either a man or a woman between the ages
of 16-18 can marry with the consent of the court and a new requirement for a social services report to be obtained as part of this process has been introduced.
With regards to the formalities for the marriage, a new requirement for the parties to undergo testing for sexually transmitted diseases (in addition to the existing genetic testing for the Thalassaemia trait) has been introduced.
The grounds for annulment have been extended to include situations where one of the parties to the marriage entered into the marriage as a result of ‘psychological pressure’.
The grounds for divorce have also been amended. The ground of ‘adultery’ has been extended to include entering into any ‘emotional’ and/or sexual relationship with another person. The period for the ground of ‘abandonment’ has been reduced from 12 months to 10 months. The period for the ground of ‘living apart after rejection of any divorce petition by the court’ has been decreased from 24 months to 12 months. The period for the ground of ‘separation’ has been reduced from 3 years to 18 months. In addition, new grounds for divorce have also been introduced including forced sexual intercourse, situations where the other party has told a lie which has put severe strain on the parties’ living together and has resulted in financial or psychological loss and situations where the other party has used property belonging to the other or any of the joint matrimonial assets through deception, undue influence or threats or has taken out a loan or otherwise encumbered or sold such property.
The definition of joint matrimonial assets under the new law has been expanded. Under the new law, in the event that any of the joint matrimonial assets have been disposed within the period of 3 years prior to the divorce being filed and the proceeds have been used for the benefit of only one of the parties, this will be taken into account in favour of the other party when calculating the distribution of the remaining joint matrimonial assets. In addition, where any debts have been incurred as a result of the fault of one party only, the other party will be relieved of these debts. When submitting to the court the list of all matrimonial assets, the parties must now also include details of all assets which have been disposed of within the period of 3 years prior to the filing of the divorce.
Under the new law, the court now has the power, upon application by either party, to decide, taking into account the economic and social circumstances of the parties and the needs of the children, which of the parties shall remain in the matrimonial home and which of the parties shall be entitled to use any items of movable property.
A further amendment has been made to the previous rule that any property belonging to the parties prior to the marriage or given to the parties by way of gift during the course of the marriage would not form part of the joint matrimonial assets to stipulate that where the other party has made improvements towards that property without receiving any consideration, the other party can benefit from any increased value in proportion to his/her contribution.
In terms of jurisdiction, the previous requirement for the petitioner to be resident in the TRNC hasbeen lifted. A divorce case can now be filed in the TRNC if either party resides in the TRNC.
The rules concerning custody of children have been amended to ensure that the views of children over the age of 7 can be assessed by a pedagogue from the Social Services Department and taken into account by the court.
The amount of ¼ of the minimum monthly wage per child has been set as the minimum amount which the court can order in respect of child maintenance payments. In addition, provision has been made for maintence payments to continue after the children have reached the age of 18 if they continue in further education.
The provisions on surnames have now been amended so children can have their mother’s maiden name recorded as their surname along with their family surname (if different to their mother’s maiden name).
The courts now have increased powers in relation to injunctions taken out against violent or abusive spouses. The minimum period for which such an injunction order can be granted is 6 months and in cases where there is the possibility of physical or sexual violence or death threats, the injunction can be made for an indefinite term.
A new Department for Communal Sexual Equality and a Centre for Advice and Prevention of Violence have been set up and these departments will provide assistance to persons obtaining injunctions under the new law.
This guide has been prepared by Naomi Mehmet & Partners. For more information, please contact Naomi on the details below
Email: naomi@nmplegal.com
Tel: 0090 392 816 0440
Fax: 0090 392 815 0702
Web: www.nmplegal.com
This guide is intended for general information purposes only and does not constitute legal or professional advice. Naomi Mehmet & Partners does not accept and specifically excludes liability for any loss or harm which may occur to any person as a result of relying on or otherwise using this information.