Unravelling the Enigma of Divorce
for Foreigners in Seychelles

An Analysis of the Divorce Laws in Seychelles.

The legal structure of divorces in Seychelles incorporates distinctive elements that render the procedure notably onerous for individuals of foreign nationality. In order to effectively navigate this complex terrain, it is imperative to possess a comprehensive knowledge of the following fundamental components. Foreign individuals encounter many obstacles while attempting to obtain a divorce in Seychelles, encompassing rigorous residence prerequisites, protracted waiting durations, intricate paperwork, restricted legal assistance, and financial ramifications. Examining alternate methods of resolving disputes and exploring prospective options beyond the jurisdiction of Seychelles can offer a measure of respite. Addressing these difficulties necessitates implementing legal reforms and enhancing support mechanisms to guarantee a more equal divorce process for all parties concerned.

The residency and domicile requirements present a significant challenge for non-resident foreigners.

Foreign individuals who wish to obtain a divorce in Seychelles face the formidable challenge of having to meet strict residence criteria. In general, it is customary for individuals to establish a fixed place of residence for a minimum duration of twelve months prior to commencing divorce proceedings. The prolonged waiting duration is a substantial obstacle for individuals who need connections to Seychelles, further aggravating an already arduous procedure. The task is rendered more complicated by the fact that a person cannot petition the court for divorce within one year of marriage except in very limited circumstances, such as exceptional hardship, the onus of establishing that fact resting on the petitioner.

Extended waiting periods exacerbate the distress experienced by individuals trying to terminate their relationships. In conjunction with the stipulated residency prerequisites, Seychelles enforces protracted waiting durations before issuing divorce decrees, being six weeks after being granted a conditional order of divorce before a decree absolute can be granted. In the event that one party contest the grant of the divorce by way of appeal, the Registrar of the Supreme Court is prevented from issuing a decree absolute unless and until the appeal process is exhausted thereby contributing to further delay. This situation can exacerbate emotional distress and impose financial hardships on individuals from other countries as they endeavour to disentangle their lives from their partners. The use of delay tactics can further intensify the already arduous divorce process.

Navigating the intricate web of bureaucratic paperwork: An analysis of complex documentation.

The documentation requirements for obtaining a divorce in Seychelles present an additional layer of complexity, particularly for non-residents. A person attempting to get a divorce in Seychelles is required to provide an original certificate of marriage or at least a certified true copy of the original. If there are children born out of the marriage a person seeking a divorce is also expected to provide original birth certificates of the children or certified true copies of the same. Navigating the complex documentation network, foreign jargon, and specialist legal protocols presents a formidable obstacle. The intricate nature of this labyrinth has the potential to evoke frustration inside individuals, rendering the dissolution of marriage unattainable.

The present study aims to examine the socio-cultural factors that contribute to the occurrence of divorce in Seychelles.

In order to gain a comprehensive understanding of the challenges encountered by non-native individuals seeking a divorce in Seychelles, it is imperative to consider the socio-cultural elements deeply ingrained throughout Seychellois society.

The societal attitude toward divorce in Seychelles.

The issue of divorce in Seychelles continues to be closely connected with moral and religious factors. Contemporary society places significant importance on preserving marital unions, thereby attaching a social stigma to divorce. Those considering this action are confronted with societal consequences and scrutiny, exacerbating the challenges experienced by those from other countries.

The influence of gender dynamics and cultural roles on divorce decision-making.

The influence of conventional gender roles and societal expectations is a prominent factor in divorce determinations within the Seychellois community. Women, in particular, encounter cultural norms that inhibit the act of divorce. The prevalence of cultural expectations regarding adherence to conventional gender roles frequently engenders apprehension and reticence towards initiating divorce, thereby ensnaring individuals in marriages that fail to provide them with contentment.

The predicaments encountered by individuals from foreign countries.

Foreign individuals encounter numerous obstacles when undertaking divorce proceedings in Seychelles. The absence of adequate legal assistance and limited knowledge of the indigenous legal framework exacerbates these challenges. The matter is exacerbated by the fact that Seychelles is a tourism destination that attracts a considerable number of tourists from Europe and several countries in Europe make it legally mandatory for a person to seek a divorce in the countries where he/she was married. Countries such as France, Germany, United Kingdom, Italy, Spain, Portugal Belgium, and Switzerland to name a few have such legal requirements in their divorce laws. This means that if you were married in one of these countries, you must also get divorced there, even if you are now living in a different country. There are a few exceptions to this rule, such as if one spouse is unable to return to the country of marriage or if there is a risk of domestic violence. For a country that promotes itself on the concept of wedding in paradise, the legal pre-requisites of domicile and residency before you can petition the courts for divorce in Seychelles is seemingly problematic, especially for persons who are from countries where the law does not allow them to get a divorce in their country of birth, origin, residence or domicile if they were married in another country such as Seychelles.

Dissolution of marriage

Article 227 of the Civil Code 2020 (hereinafter referred to as the “Code”) deals with the dissolution of marriage. It provides that a marriage may be dissolved in one of two ways; either

(a)by the death of one of the spouses; or

(b)by divorce.

Article 230 of the Code provides for the grounds of divorce. There are primarily five grounds upon which a party to a marriage may petition the court for divorce. A party to a marriage may petition for divorce on the ground that the marriage has irretrievably broken down because –

(a)the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent;

(b)the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)the petitioner and the respondent have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition, and the respondent consents to the grant of the divorce; or

(e)the petitioner and the respondent have lived apart for a continuous period of five years or more.

(2)Subject to paragraph (3), a party may not petition for divorce until after one year from the date of the marriage.
The legal requirement of attempt at reconciliation – Article 231 of the Code.

Another stumbling block to the attainment of a divorce in Seychelles is the legal requirement that the party who petitions the court for divorce must prove that there has been at least one attempt at reconciliation before a divorce would be granted by the court. Article 231 of the Code prevents the court from granting an order of divorce if there is no evidence of reconciliation. It provides as follows:

(1) The court shall not grant a divorce unless it is satisfied that—

(a) an attempt has been made to reconcile the petitioner and the respondent, and
(b) after inquiring into the evidence presented by the parties to the proceedings, there is no reasonable possibility of reconciliation between the parties, and
(c) the marriage has irretrievably broken down.

(2) The court shall, if it appears to the court at any stage of the proceedings for divorce that there is a reasonable possibility of reconciliation between the parties, adjourn the proceedings for such period as the court thinks fit to enable an attempt at reconciliation to be made.

Jurisdiction of the Supreme Court

Section 3 of the Matrimonial Causes Act provides for the jurisdiction of the Supreme Court in respect of matrimonial causes. Section 3 (1) provides that subject to subsection (2), the Supreme Court shall have jurisdiction in relation to matrimonial causes on an application of a party to a marriage who, at the date when proceedings are begun—

(a)is domiciled in Seychelles; or
(b)has been habitually resident in Seychelles throughout the period of one year ending with the date when proceedings are begun.

(2) The Supreme Court shall have jurisdiction in respect of proceedings—

(a)under section 25 if a party to the marriage—
(i)is domiciled in Seychelles, or
(ii)is resident in Seychelles at the date when proceedings are begun;

(b)for nullity, if a party to the marriage—
(i)is domiciled in Seychelles, or
(ii)has been habitually resident in Seychelles throughout the period of the year ending with the date when proceedings are begun;

(c)in relation to a relevant child, if the child is in Seychelles at the date when proceedings are begun.

According to Article 229 (1) of the Code, specific jurisdictional constraints exist where a party involved in a marriage seeks a divorce but is not domiciled in Seychelles. Section 229 provides as follows:

Under paragraph (2), the court possesses jurisdiction over a matrimonial cause when a party to a marriage, domiciled in Seychelles at the commencement of the proceedings, applies for it. The term “domicile” is defined in Section 10(1) as the country where a person habitually resides. This narrow definition of the term “domicile” are not without its challenges for foreigners married in Seychelles but who would normally be domicile in a country other than Seychelles. This legal hurdle makes it almost impossible for a foreigner who ties the knot in Seychelles to then seek a divorce within the Seychelles jurisdiction as he or she may not be able to overcome the domicile requirement. The reason for such a requirement in Seychelles law is still unclear. In my view a foreigner who gets married in Seychelles should not have to surmount this impossibility if he or she decides to get apply for the dissolution of his/her marriage in Seychelles. Some countries have a legal requirement that divorces must be sought in the country where you were married. These countries follow the concept of “lex loci celebrationis” which means that the jurisdiction to grant a divorce is based on the place of marriage. Some countries that impose this requirement include England, Wales, Australia, Scotland, Ireland, and New Zealand. It is important to consult with a legal professional to understand the specific laws and requirements of the country where you were married in order to determine the appropriate jurisdiction for seeking a divorce.

Section 229(2) delineates the circumstances under which the court possesses jurisdiction over proceedings initiated according to Article 256 of the Code. These circumstances encompass the concepts of “domicile” and “resident.” An individual seeking to invoke the court’s jurisdiction by commencing proceedings under Article 257 of the Code must fulfil the condition of either being domiciled in Seychelles or being a resident of Seychelles at the time of initiating said proceedings. Section 229(2) stipulates the following:

According to Article 256, the court possesses jurisdiction concerning the proceedings if a party involved in the marital union –

(i) The individual is domiciled in Seychelles.
(ii) The individual currently resides in Seychelles when the legal proceedings were initiated.

Jurisdiction – The requirements of domicile and resident – Article 229 of the Code.

Article 229 (1) of the Code gives the Court jurisdiction to hear a divorce petition only if the party who petitions the Court for divorce is domiciled in Seychelles at the time he or she files for divorce. Article 229 (1) provides that subject to paragraph (2), the court shall have jurisdiction in relation to a matrimonial cause on an application of a party to a marriage who, at the date when proceedings are commenced, is domiciled in Seychelles.

The implication of Article 229 is that foreigners who get married in Seychelles and who decide to get a divorce subsequently will find themselves in a quagmire of being able to petition the court for divorce in Seychelles as they would not be able to satisfy the domicile requirement under Article 229(1).

In respect of proceedings commenced under Article 256 of the Code, Article 229 (2) imposes further jurisdictional requirements. Article 256 of the Code requires either domicile or residency in Seychelles at the date proceedings are commenced under Article 256 of the Code.
Protection of a party to a marriage or relevant Child – Article 256 of the Code.

First, it is pertinent to consider the provisions of Article 256 of the Code, which provides as follows:-

(1) Without prejudice to any other power of the court, the court may, on an application by a party to a marriage, grant such order as it thinks fit—
(a)for the protection of a party to the marriage or a relevant child;
(b)restraining a party to the marriage—
(i)from entering or remaining in any premises or any part of any premises, including the matrimonial home, where the other party resides or works;
(ii)from entering the premises of any educational or training institution at which a relevant child is attending;
(c)in relation to the property of a party to the marriage or the matrimonial home;
(d)relating to the occupancy of the matrimonial home.

(2) In exercising its powers under paragraph (1), the court may—
(a)make an order relieving a party to the marriage from any obligation to perform marital services or render conjugal rights;
(b)in the case of an order under paragraph (1)(a), (b), or (d), make an order as the court deems fit for the welfare of a relevant child;
(c)in the case of an order under paragraph (1)(a), (b)(i) or (d), make an order for the maintenance of the party. Article 256 (2) provides as follows:-

(2) The court has jurisdiction in respect of proceedings—

(a)Under Article 256, if a party to the marriage—
(i)is domiciled in Seychelles; or
(ii)is resident in Seychelles at the date the proceedings were commenced;
(b)for nullity if a party to the marriage is domiciled in Seychelles; or
(c)in relation to a relevant child if the child is in Seychelles at the date when the proceedings are commenced.
It can be inferred, whether accurately or not, that the criteria of residency and domicile would only be relevant in cases that fall within the scope of Articles 229 and 256 of the Code, given that the nullity of marriage is governed by Article 238. However, article 229(2)(b) presents a contrasting viewpoint. Section 229 (2) (b) provides as follows:
The court possesses jurisdiction concerning the proceedings-
(b) In the context of nullity, it should be noted that a party’s domicile to a marriage in Seychelles is a determining factor.
In the context of a pertinent minor, if said minor is present in Seychelles when the legal actions are initiated.
The definition of domicile and residence – Article 10 of the Code.
Article 10 of the Code provides that:-
(1)”Domicile” means the country of habitual residence of a person.
(2) Habitual residence is a matter of fact determined by an assessment of all the relevant circumstances.
(3) Without limiting its meaning, “relevant circumstances” includes—
(a) the place which is the centre of the person’s interests;
(b) the place of usual residence of the person;
(c) whether the purpose of residence in the country is temporary or settled;
(d) the length of time a person has been physically present in the country;
(e) how well the person has integrated into the particular country, taking into account factors such as whether the person has social contacts in that country, is adapted to the local culture, or speaks the local language.
(4) Every person has one habitual residence.
(5) Loss of habitual residence occurs only after a new habitual residence has been acquired.
(6) It is presumed that the habitual residence of a ward is that of the guardian.

The divergence lies in initiating legal actions under Article 256 and Article 238. Article 256 necessitates two conditions to be met, namely domicile or residency, while Article 238 requires domicile in Seychelles as a prerequisite for invoking the court’s jurisdiction.

The provision outlined in Article 146 of the Civil Code Act of Seychelles 2020, hereinafter referred to as the “Code,” establishes a comprehensive prohibition on entering a second marriage without dissolving the existing marriage. Article 146 of the Code provides as follows:

The formation of a marriage is prohibited until the termination of a preexisting marital union.

When such a marriage is entered into, it is considered illegal, invalid, and without legal effect, as stipulated in Article 146 of the Code. The aforementioned principle is underlined in Article 238(1) (c) of the Code, whereby it is stipulated that the court has the authority to grant an order of nullity if, upon application, certain conditions are met.

One of the parties involved in the marriage was already married to another individual at the time, and the marriage has not been legally terminated.
The current legal framework exhibits discriminatory practices towards non-resident or non-domiciled foreigners in Seychelles when initiating legal procedures under the MCA. The stipulation that those seeking to invoke the jurisdiction of the court under the MCA must initially establish a domicile in Seychelles gives rise to discriminatory practices against individuals, particularly non-residents and foreigners, who do not have a habitual domicile in Seychelles. The inability of an individual to access the courts in Seychelles for proceedings under the MCA arises when the condition of domicile still needs to be met. There may be a potential inconsistency between Article 229(2)(b) and Article 27 of the Constitution, as stated below:

Under Article 27 (1) of the Constitution, each individual is entitled to receive equitable safeguard under the legal system, encompassing the exercise of the rights and liberties delineated in this Charter, devoid of any discrimination, unless such differentiation is deemed essential within a democratic society.

The primary focus of Article 27(1) of the Constitution is the concept of “discrimination.” Article 229(2)(b) establishes a subgroup within a larger group, consisting of individuals who are both domiciled in Seychelles and have the right to seek the court’s jurisdiction for a nullity of marriage application. Conversely, another subgroup is excluded from this right solely based on their domicile status. The stipulation that individuals must establish residency in Seychelles before initiating legal action under the MCA to seek the annulment of a marriage can be deemed illogical, objectionable, and contradictory to the provisions outlined in Article 27 of the Constitution. The distinction is made between two distinct categories of individuals: those who are legally residing in Seychelles and have the right to seek legal recourse through the court under the MCA and those who are not residents of Seychelles and consequently do not possess this right.

The provision of legal assistance for foreign spouses is subject to certain limitations.

Divorce in Seychelles poses considerable challenges for foreign spouses due to language issues and a limited understanding of the local judicial system. The acquisition of sufficient legal representation poses a significant challenge, impeding individuals from comprehensively grasping their entitlements and alternatives. This renders them susceptible and exacerbates an already intricate circumstance.

The financial ramifications associated with divorce for non-native individuals.

The procedure of obtaining a divorce in Seychelles can be further complicated for foreign individuals due to financial issues, which can worsen an already challenging situation. Disputes about asset entitlement, property ownership, and financial settlements have the potential to escalate into contentious matters swiftly. Resolving these intricacies frequently necessitates the engagement of proficient legal counsel, a resource that may not be readily available to individuals from foreign countries.

Exploring Alternatives to Divorce in the Context of Seychelles.

In light of the difficulties encountered by foreign individuals in their pursuit of divorce, it is imperative to examine other approaches to resolving disputes and to contemplate prospective options for initiating divorce proceedings beyond the jurisdiction of Seychelles.

Mediation: Exploring Shared Interests Beyond the Legal Setting.

Mediation presents a potentially advantageous alternative to conventional divorce proceedings. Through a neutral mediator, divorcing couples can participate in an open and productive discourse, enabling them to pursue mutually accepted resolutions without being completely dependent on the judicial system. This strategy can mitigate stress and reduce the confrontational aspects of divorce, especially for individuals from other countries who may need to be better versed in the legal framework of Seychelles.

The concept of collaborative divorce aims to foster amicable separations.

Another viable option that merits consideration is the collaborative divorce procedure. This method facilitates transparent communication and endeavours to handle the needs and concerns of all involved parties effectively. By adopting a cooperative and courteous approach, couples can endeavour to attain equitable outcomes without encountering the complexities associated with the judicial system in Seychelles.

The Significance of International Agreements and Treaties in Global Affairs

The function of international law is of utmost importance in influencing the dynamics of divorce proceedings that involve individuals from different countries. Analyzing the effects of these accords and treaties on divorce procedures in Seychelles can offer valuable insights into prospective pathways for reform.

This study aims to analyze the influence of international law on the phenomenon of cross-border divorce.

The landscape of cross-border divorce is significantly impacted by international accords and treaties, which give rise to various obstacles and opportunities. The legal frameworks in Seychelles have a significant role in determining the rights and safeguards afforded to foreign individuals seeking a divorce. A comprehensive grasp of the convergence between international law and domestic legislation is necessary for individuals confronted with the intricate process of obtaining a divorce as foreign nationals within the jurisdiction of Seychelles. The European Union Divorce Law Pact or Rome III Regulation, formally Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation is a regulation concerning the applicable law regarding divorce valid in 17 countries. Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations

An in-depth examination of Seychelles’ compliance with international treaties – the Hague Convention of 1970 on the Recognition of Divorces and Legal Separations.

The adherence of Seychelles to international conventions and treaties concerning divorce plays a pivotal role in enabling an equitable and impartial legal framework. The degree to which the nation complies with these international commitments can significantly influence the experiences of foreign individuals seeking divorce in Seychelles. The Hague Convention on the Recognition and Enforcement of Marriages and Divorces Abroad is an international treaty that aims to provide a framework for the recognition and enforcement of marriages and divorces that occur in different countries. Its full name is the “Hague Convention of 1970 on the Recognition of Divorces and Legal Separations.”

Here are some key points about this convention:

Objective: The primary objective of this convention is to ensure that marriages and divorces that take place in one country are recognized and enforced in other countries, thus preventing conflicts and legal disputes.

Recognition of Marriages: The convention provides a mechanism for the recognition of marriages celebrated in other countries. This includes both the validity of the marriage itself and issues related to the personal and property rights of spouses.

Recognition of Divorces: It also addresses the recognition of divorces and legal separations granted in one country, making sure that these judgments are recognized and enforceable in other signatory states.

International Cooperation: The convention promotes international cooperation and simplifies the procedures for recognizing and enforcing foreign marriages and divorces.

Limitations: It’s important to note that not all countries are signatories to this convention, and its application can vary depending on each country’s domestic laws and regulations.

Additional Treaties: Some countries may have bilateral agreements or other treaties in addition to the Hague Convention that govern the recognition and enforcement of marriages and divorces.

Proposal for Legal Reforms and Advocacy: A Comprehensive Examination of Legal Frameworks and Advocacy Strategies.

Given the numerous obstacles encountered by foreigners seeking divorce in Seychelles, it is crucial to suggest amendments to Seychelles’ divorce legislation to enhance the procedure and safeguard the rights of all parties concerned. In light of the above issues, this paper aims to propose amendments to Seychelles’ divorce legislation. The recommended areas of attention for reforms in Seychelles’ divorce legislation should be the abolition of residency and domicile prerequisites, the simplification of paperwork procedures, doing away with the filing of petition and affidavit when applying for divorce, the introduction of a simple and specific prescribed form, and the minimization of waiting periods by the introduction of a family division of the Supreme Court dealing exclusively with family matters, such as divorces, division of matrimonial properties, custody, access and maintenance of children. The implementation of language simplification techniques in legal documents, together with the provision of easily accessible information, can effectively mitigate the stress and confusion experienced by foreign individuals seeking divorce. The law should also abolish the requirement of proof of reconciliation as this presents another unnecessary legal hurdle, protracting the process and making it more cumbersome and complicated. The fact that a person has petitioned the court for divorce is proof enough that the marriage has irretrievably broken down and is beyond salvation. The law should therefore facilitate the process instead of making it more complicated and difficult.
Promoting enhanced legal resources and assistance for individuals of immigrant origin.

Providing enhanced legal assistance and resources for overseas individuals pursuing divorce proceedings in Seychelles is paramount. The establishment of collaborations between legal institutions and organizations that advocate for the rights of foreigners can serve as a means to bridge the existing divide, thereby facilitating individuals’ access to proficient legal practitioners who possess the expertise necessary to navigate the intricacies of the legal framework in Seychelles.

In conclusion, it can be inferred that the above points collectively support the notion that the process of navigating the complex array of challenges encountered by foreign individuals seeking divorce in Seychelles is a formidable undertaking. Residency requirements, waiting periods, cultural stigmas, limited legal help, and financial considerations collectively contribute to a complex and demanding context. Gaining a thorough comprehension of the divorce environment in Seychelles is of utmost importance for anyone considering divorce in this country, which is aesthetically appealing and legally intricate.

Frequently Asked Questions (FAQs)

What are the residence criteria that foreign individuals must meet in order to pursue divorce proceedings in Seychelles?

In order to initiate divorce procedures, individuals of foreign nationality are required to acquire residency for a minimum duration of twelve months.

Is it possible for a non-resident to obtain a divorce in Seychelles without the requirement of physical presence?

Regrettably, individuals of foreign nationality are typically obligated to be physically located within the jurisdiction of Seychelles in order to initiate divorce proceedings.

What are the financial ramifications for non-citizens in divorce proceedings?

Non-native individuals need help with the allocation of assets, acquisition of property, and resolution of financial matters, necessitating the involvement of specialized legal counsel.

Are any exclusions or specific conditions applicable to international individuals seeking divorce in Seychelles?

Although there are exceptions and special rules, they are generally restricted and contingent upon specific situations. It is recommended to seek guidance from legal experts.

Is there any prospect for a positive future outcome with the implementation of prospective legal reforms?

By Frank Elizabeth

Barrister/Attorney/Public Notary

Victoria Law Firm

Eden Island, Eden House, Seychelles