Times do not get much tougher than a separation. On top of the feelings of anger, regret and disappointment which the spouses may be feeling as they watch their marriage fall apart, a degree of uncertainty about the future is bound to arise: what is the first step to separate from my spouse? Who are the kids going to live with? How much maintenance will I have to pay or get paid? What is going to happen to our house? And what about all those things I paid for throughout the years?
Like it or not, these questions can only be resolved through separation proceedings, as it is by means of separation that the spouses’ obligation to cohabit is brought to an end.
The first step in acquiring a separation would be to file a letter in the registry of the Court for the commencement of mediation proceedings. These proceedings afford the spouses and their lawyers an opportunity to solve their issues amicably, without proceedings before the Family Court. Throughout the mediation, a mediator mediates between the spouses to help them reach an agreement. The lawyers of the respective parties are to help in reaching such an agreement by providing their advice throughout the process.
The agreement which the mediation aims to achieve will constitute the law that will regulate the relationship between the spouses. This agreement must therefore regulate whatever remains from the marriage, namely the property and the children, if any. The spouses must therefore decide how they are going to split their assets and their liabilities, including the matrimonial home (which they can decide to sell). If the spouses have children who are under the age of 18, they must also agree on the parent with whom the children will reside, as well as the access to be exercised by the other parent. The parents will also have to agree on the payment due for the child’s maintenance, health and education expenses by the parent with whom the child does not reside.
If, however, it results during the mediation that the spouses are not able to reach an agreement, matters are taken out of the spouses’ hands. The mediator would close the mediation and the parties would have to file a lawsuit before the Family Court, so that the matters which would have otherwise been regulated in the separation deed are regulated by said Court. Thus the ball is no longer in the spouses’ court. Instead the judge will decide on those matters which the parties cannot agree upon throughout the mediation.
In its judgement, the Judge is bound to decide in the best interests of the children. If it results that the spouses cannot get along, the Judge may order that only one of the parents is vested with the children’s care and custody. Moreover, the Judge determines the amount of maintenance due for the children on a case by case basis and the access rights of each party.
Disclaimer: This article is not to be considered as legal advice. For legal assistance, kindly contact the firm’s lawyers.
