Family law in Bermuda: overview
A Q&A guide to family law in Bermuda.
The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
To compare answers across multiple jurisdictions visit the Family Country Q&A tool.
This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.
Family Law was published in association with the International Academy of Matrimonial Lawyers.
For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.
Jurisdiction and conflict of law
Sources of law
In the Supreme Court, the core legislation relating to divorce, financial proceedings and to children born to married couples (or children who are considered to be children of the family) is the Matrimonial Causes Act 1974 (MCA 1974).
Unmarried parents may choose to address issues relating to the welfare of children by bringing an application in either the Supreme Court or the Magistrate's Court. Applications in the Supreme Court will be determined by reference to the provisions of the Minors Act 1950 (MA 1950). The court is empowered under the Act to make such orders as it thinks fit in relation to the guardianship, custody or maintenance of a minor. In the Magistrate's Court, applications in relation to children and their welfare, whether born within marriage or outside of marriage, including issues of maintenance, are determined in accordance with the Children Act 1998 (CA 1998) as amended by the Children's Amendment Act 2002. The CA 1998 has recently been further amended by the Children’s Amendment Act 2014, although the Act is not yet in force.
Other Acts which are relevant include the following:
Matrimonial Proceedings (Magistrate's Court) Act 1974 (financial relief for a married woman or a married man prior to the issue of a divorce petition).
Adoption of Children Act 2006.
Domestic Violence (Protection Order) Act 1997.
Law Reform (Husband and Wife) Act 1977 (includes provisions for the determination of the title or possession of property between a husband and wife).
The Constitution of Bermuda 1968 has a number of sections applicable to family law.
Disputes relating to children of married parents, or children who are deemed to be children of the family, will be dealt with in the Supreme Court. Unmarried parents may choose to address issues relating to the welfare of children by bringing an application in either the Supreme Court or the Magistrate's Court.
The court has jurisdiction to hear proceedings for divorce, judicial separation or nullity of marriage where (section 2, MCA 1974):
Either of the parties is domiciled in Bermuda on the date when the proceedings are begun.
Either of the parties are ordinarily resident in Bermuda throughout the period of one year prior to the proceedings being initiated.
The court can determine applications for financial relief on the granting of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation, or at any time thereafter (sections 27 and 28, MCA 1974).
Where proceedings for divorce, nullity or a decree of judicial separation are continuing in Bermuda, or at any time thereafter, the Supreme Court has jurisdiction to make orders in relation to children of the family pursuant to section 46 of MCA 1974.
The MA 1950 is silent as to the jurisdiction of the court. The court has held that it can accept jurisdiction over a child present in Bermuda applying its "paternal jurisdiction". In considering the most convenient forum, the court must apply a discretionary exercise having regard to the welfare of the child as the first and paramount consideration (J (A Minor), Civil Jurisdiction 1996, No 44).
The Magistrates Court in Bermuda has jurisdiction where (section 36L, CA 1998):
The child is habitually resident in Bermuda at the commencement of the application.
The child is physically present in Bermuda.
Substantial evidence is available.
No application for custody of, or access to, the child is pending before an overseas tribunal.
No overseas order in respect of custody or access to the child has been recognised by a court in Bermuda.
The child has a real and substantial connection with Bermuda.
On the balance of convenience it is appropriate for jurisdiction to be exercised in Bermuda.
Domicile and habitual residence
As Bermuda is a common law jurisdiction based primarily on UK law, the concept of domicile has been determined in accordance with the common law of England and Wales. Domicile of origin will be acquired at birth: a child born to married parents will receive the domicile of his father; a child born to unmarried parents or born after the death of the child's father will receive the domicile of the mother.
A person may acquire a new domicile by residing in another country with the intention of continuing to reside there, and not returning to permanently reside in the country in which that person had previously been domiciled. The burden of establishing a change of domicile is on the person asserting it. In Burrows v Burrows, (Divorce Jurisdiction 1999, No 37), the court held, citing the UK authority of Boldrini v Boldrini (1932 Probate Division), that residing in Bermuda subject to a work permit did not preclude one from choosing Bermuda as a domicile of choice. The term habitual residence is interchangeable with the term ordinary residence. The courts have construed the term according to its ordinary and natural meaning and have adopted the definition that a person is ordinarily resident in a place if he habitually and normally resides lawfully in such place from choice and for a settled purpose, apart from temporary or occasional absences.
CA 1998 specifically defines when a child is habitually resident for the purposes of applications pursuant to that Act (see Question 2).
Conflict of law
Schedule 1 of MCA 1974 provides for divorce proceedings to be stayed where proceedings have been commenced in a foreign jurisdiction. The power is discretionary and will be applied on the balance of fairness and convenience. The court is directed to have regard to all relevant factors including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed. The court will have regard to the principle of forum non conveniens and will consider which is the more natural or appropriate forum to try the case.
The factors which the court will consider include:
The place of residence of the parties and the location of their assets.
The convenience of witnesses.
Any delay or expense which may result in a decision to stay.
The extent to which one set of proceedings can deal comprehensively with all the issues between the parties, including issues as to financial provision.
The Bermuda court does have jurisdiction, which it will exercise sparingly and with great caution, to enjoin a party from carrying on proceedings, including matrimonial proceedings, in a foreign court. The jurisdiction has been confirmed by the Bermuda Supreme Court (Scandia International Insurance Company and others v Al amana Insurance and Reinsurance Company Limited, Civil Jurisdiction 1993, No 381) citing the Privy Council decision of Societe Nationale Industrielle Aerospatiale v Lee Kui Jak  Privy Council AC 871 as binding on Bermuda.
In relation to matters pursuant to CA 1998 in the Magistrate's Court, the issue of jurisdiction is determined by section 36L (see Question 2). Section 36N permits the court to decline jurisdiction where it is more appropriate for jurisdiction to be exercised outside Bermuda.
Pre- and post-nuptial agreements
Validity of pre- and post-nuptial agreements
The courts of Bermuda have significant regard to decisions of the English Court of Appeal. In the case of Remington v Remington (Civil Appeal No 1 of 1977), the Court of Appeal held that the Bermuda courts should pay great respect to the English Court of Appeal's construction of statute and try to benefit from the guidance which is provided. In the absence of clear reasons to the contrary, the court stated that the tendency would be to follow the English decision, particularly in matters where English law or practice is applicable.
This pronouncement applies to decisions of the Supreme Court (formerly House of Lords), which are highly persuasive.
Additionally, the Court of Appeal in the case of Grayken v Grayken (Civil Appeal No 14 of 2010) confirmed that Privy Council decisions are binding in Bermuda whether or not the appeal is from Bermuda.
In the case of McLeod v McLeod  UKPC 64, the Privy Council considered the legal position regarding the enforceability of a post-nuptial agreement and held that such agreements were 'maintenance agreements' according to the statute. The Privy Council held that post-nuptial agreements are binding and enforceable, and will be varied only if circumstances have changed or where inadequate provision was made for any child of the marriage. As the Privy Council is Bermuda's highest appellate court and, given the similar provisions in the Matrimonial Causes Act 1973 of the UK (UK MCA 1973), and MCA 1974, the decision in McLeod is binding on the courts of Bermuda. In McLeod the Board made comments in relation to pre-nuptial agreements which strictly were obiter.
Historically, pre-nuptial agreements were unenforceable as against public policy, but were viewed as a circumstance of the case that the court could take into account. The UK Supreme Court judgment in the case of Radmacher v Granatino  UKSC 42 altered this position considerably and, deviating from what was said by the Board in McLeod concerning pre-nuptial agreements, provided that the court should give effect to both pre-nuptial and post-nuptial agreements that are freely entered into by each party with a full appreciation of its implications, unless in the circumstances it would be unfair to hold the parties to their agreement. Therefore, the UK Supreme Court established a rebuttable presumption that the court should give effect to pre- and post-nuptial agreements.
As a decision of the Supreme Court of the UK, the decision in Radmacher is highly persuasive to the Bermuda courts in relation to both pre- and post-nuptial agreements. Potential difficulty, however, may arise in light of the earlier Privy Council decision of McLeod. It remains to be seen whether the guidance in Radmacher will be followed in relation to pre-nuptial agreements and whether the comments of the Board on pre-nuptial agreements in McLeod will be considered obiter. Despite the time that has elapsed since these important decisions, there have been no reported cases addressing the approach of the Bermuda courts to pre-nuptial agreements. However, it has certainly become more common for clients to enter into such agreements. It remains to be seen how the Bermuda courts will reconcile the differing approaches to the validity and treatment of pre-nuptial agreements.
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
Section 18 of MCA 1974 is in similar terms to section 14 of the UK MCA 1973 and provides that the validity of a foreign marriage is to be determined in accordance with the rules of private international law.
By the rules of private international law, the form of marriage will be governed by the local law of the place of celebration. For the marriage to be valid and recognised, it must comply with the local formalities of the place where the marriage was celebrated.
The capacity of the parties to marry will be determined, however, not by reference to the law of the place where the marriage took place, but having regard to the law of each party's domicile before the marriage. Where the previous domiciles of the marrying parties differs, the courts in Bermuda have held that the location of the intended matrimonial home will govern the applicable law as to capacity (Burrows v Burrows, 1999, Divorce jurisdiction No 37).
The Recognition of Divorces and Legal Separations Act 1977 sets out the criteria under which a divorce obtained in a country other than Bermuda is recognised. The divorce must have been obtained by means of judicial or other proceedings in a country outside of Bermuda and be effective under the law of that country. The validity of an overseas divorce will only be recognised in certain circumstances (section 3, Recognition of Divorces and Legal Separations Act 1977):
Where either spouse was habitually resident in that country.
Where both spouses were nationals of the country.
If the petitioner was a national of the country and was habitually resident there.
The petitioner was a national of the country and was present in the country on the date in which he instituted the proceedings provided that he and the respondent last resided in a country which did not allow for divorce to be obtained.
Where a country uses the concept of domicile as a ground of jurisdiction, the Recognition of Divorces and Legal Separations Act provides that habitual residence is interchangeable with any reference to domicile.
Foreign civil partnerships are not recognised in Bermuda.
Section 7 of MCA 1974 precludes the filing of a petition for divorce before a period of three years from the date of marriage. An application can be made to present a petition within the three-year period on the ground that the petitioner has suffered exceptional hardship or the actions of the respondent show exceptional depravity.
Section 5 of MCA 1974 provides that the only ground for filing for divorce is where the marriage has broken down irretrievably. In order to satisfy the court that the marriage has broken down irretrievably the petitioner must prove one of the following facts:
That the respondent has committed adultery and as a result of that adultery the petitioner finds it intolerable to live with him or her.
The respondent has behaved unreasonably and the petitioner cannot be expected to live with the respondent.
That the parties to the marriage have lived apart for a continuous period of two years prior to issuing the divorce petition and that they both consent to a divorce being granted.
That the respondent has deserted the petitioner for a continuous period of two years prior to issuing a divorce petition.
That the parties to the marriage have lived separate and apart for five years. The consent of the respondent is not required.
In respect of any marriage that has taken place after 31 December 1974, the marriage will be deemed void if (section 15, MCA 1974):
The marriage was not valid pursuant to the Marriage Act 1944. The Marriage Act sets out the formalities for a valid marriage, including:
who may perform a marriage;
the requirement for giving notice of a marriage;
the recording of the said marriage.
At the time of the marriage either party was already lawfully married.
The parties are not respectively male and female.
In such circumstances the marriage will be void. A decree of nullity will not be required as the marriage will be considered not to have existed.
In contrast, Section 16 of MCA 1974 sets out circumstances in which a marriage will be considered voidable. A voidable marriage will be treated as valid and subsisting until a decree absolute is obtained. A marriage will be voidable where:
The marriage has not been consummated due to incapacity or wilful refusal.
Either party to the marriage did not validly consent.
Either party was suffering from a mental disorder.
The respondent was suffering from a venereal disease.
The respondent was pregnant by a person other than the petitioner at the time of the marriage.
Proceedings for the granting of a decree of nullity must be commenced within three years from the date of marriage. The relief will not be granted where the petitioner was aware that the marriage could be avoided but conducted himself in such a manner that the respondent would believe he did not intend to seek a decree of nullity.
Section 21 of MCA 1974 allows a party to petition for judicial separation in the event that any of the five facts required to prove that a marriage has broken down irretrievably exist (see above, Divorce). The court is required to enquire into the facts as is necessary but does not need to find that the marriage has broken down irretrievably.
Finances/capital and property
The powers of the courts in Bermuda are based on the largely analogous provisions of the UK MCA 1973. The court therefore has a similarly wide range of powers to make orders for financial provisions which largely mirror the powers available in the UK. There are, however, some limited, albeit significant, differences between the two Acts. The powers of the court at a final hearing are provided for in Sections 27 and 28 of MCA 1974 and permit the court to make any one, or more than one, of the following orders:
Periodical payments for such a period of time as the court determines.
Lump sum or sums provision.
Lump sum provision for the benefit of a child.
Transfer of property to the other party, to a child of the family, or to a third person for the benefit of a child of the family.
Settlement of specific property for the benefit of the other party and/or children of the family.
Variation of any nuptial settlement or trust which was established for the benefit of a party to the marriage.
The MCA 1973 does not empower the court to order the sale of property. Furthermore, there are no provisions in relation to the sharing or splitting of pension funds, nor are there provisions for the making of a "clean break" order.
Section 29 MCA 1974 largely mirrors Section 25 of the UK MCA 1973. The court is therefore required to consider:
The financial resources of the parties, including their income and assets.
The relative needs of the parties, including their respective needs in the foreseeable future.
The standard of living enjoyed during the marriage.
The ages of the parties and the length of marriage.
Any disability which the parties may be suffering from.
The relative contributions made to the welfare of the family.
The value of any benefit either party may lose by reason of the divorce.
This subsection specifically refers to pensions as an example of such a benefit. In the absence of specific legislation regarding the splitting or sharing of pensions, it is this section to which the court will have regard in addressing pension provisions. The options available regarding pensions are therefore quite limited and in most circumstances, the determined value of the pension will simply be off-set against a lump sum provision.
There are three important distinctions between MCA 1974 and the UK MCA 1973:
Subsection 1 of MCA 1974 does not include a provision requiring the court to have regard to the welfare of any children under the age of 18 years. Nonetheless, the practice of the court will be to consider the welfare of any child under the broad requirement for the court to consider all the circumstances of the case.
Section 29 continues to include the commonly entitled 'tailpiece' which requires the court to seek to place the parties in the financial position they would have been in had the marriage not broken down. This section was repealed in the UK leading to debate in Bermuda as to how that distinction should be applied when considering precedent from the UK. The courts have now made it clear that, in applying this section, the objective of the court must be to achieve a fair outcome and in that regard have fallen into line with the stated objective in the UK, despite the 'tailpiece' remaining.
MCA 1974 does not require the court to seek to achieve a 'clean break' between the parties so that neither will have any further financial claim upon the other in the future. Where possible, the court will seek to bring finality to proceedings and accept the desirability of a clean break. The present position remains, however, that the court in Bermuda does not have power to dismiss a claim for periodical payments without the consent of the party against whom the order is being made. As such, where a claim for periodical payments has not been dismissed by consent, a party may return to the court and ask for those payments to be reviewed.
The starting point, and seminal case, for consideration of ancillary relief claims in Bermuda remains the UK authority of Miller v Miller; McFarlane v McFarlane  UKHL 24. In that case, the House of Lords approved the main principles set out in White v White  2 FLR 981, namely that the objective in ancillary relief cases was to achieve fairness.
Furthermore, the Lords approved the non-discriminatory approach so that there should be no distinction between the roles of bread-winner and home-maker in assessing the contributions each makes to the welfare of the family.
Miller elaborated on the guidance provided and confirmed that in distributing the assets fairly the court must have regard to the considerations of needs (generously assessed), compensation (for any financial disadvantage caused by the marriage) and sharing. With respect to sharing, the House of Lords held that when the partnership ends each party is entitled to an equal share of the assets of the partnership, unless there is good reason to the contrary. However, in AH v KH, Divorce Jurisdiction 2012, No. 54 it was held that the sharing principle may not apply to negative equity in the matrimonial home where one party proposed to retain the property.
The primary reasons why the court in Bermuda might depart from equality relate to the source of the assets; for example, where the assets were gifted or inherited, or where the wealth was acquired prior to the marriage, or post-separation. Significant debate and case law has been generated in relation to this issue (see for example Astwood v Astwood Civil Apeal No. 15 of 2011; Humprey v Humprey, Divorce Jurisdiction 2006: No 220; T v T, Divorce Jurisdiction 2007: No 216; De Smith v Smith, Divorce Jurisdiction 2007: No 80; Wainwright v Wainwright, Divorce Jurisdiction 2011: No 1; Woolridge v Woolridge, Divorce Jurisdiction 2007: No 204 and Butterfield v Butterfield, Divorce Jurisdiction 2008 No 17 and Dill v Dill, Divorce Jurisdiction 2010: No 23). The significance of pre-acquired property will be fact-specific and discretionary. Factors which may impact upon whether there should be a departure from equality in such circumstances will include:
The length of the marriage.
The liquidity of the parties and their respective needs.
Where the needs of the parties require an equal division of the assets, the source of the assets is likely to have insignificant weight.
Equally, in cases involving less assets, an unequal division of the assets may be required to meet the needs of the parties, having particular regard to the welfare of the children as the "primary consideration", see F v F Divorce Jurisdiction 2012 No. 183. The recent UK Supreme Court decision of Prest v Petrodel Resources Ltd and Others  UKSC 34 is likely to have a significant impact on rulings in future ancillary relief cases. It is common in Bermuda for assets to be held in complex, and often combined, trust and company structures. In Prest, the Supreme Court maintained and supported the delineation between individuals and companies and made clear that the corporate veil would only be pierced in extremely limited circumstances and not just because it was in the interests of justice. However, the Supreme Court found on the facts that the company held various properties on trust for the husband.
As an offshore jurisdiction, matrimonial attorneys in Bermuda will deal with assets held in trust more frequently than some other jurisdictions. There will typically be two approaches by a spouse seeking to unlock those trust assets, of which the other party is a beneficiary:
Where the trust is deemed a nuptial settlement, the court has wide ranging powers to vary the terms for the benefit of the other spouse or child of the family (section 28 (1) (c), MCA 1974).
Where it can be shown that the assets in a trust are a financial resource to a spouse who is a beneficiary of the trust, the court will take the benefit received from the trust assets into account when determining to what extent the trust assets are a financial resource and what, if any, judicial encouragement should be placed on the trustees to make funds available to the respondent. In the case of Simmons v Simmons (Civil Appeal No 2 of 2010, (Judgment dated 9 May 2011)), the wife was one of five beneficiaries of a trust set up by her husband during the marriage. The other beneficiaries were the husband and his three adult children. The Court of Appeal for Bermuda allocated a notional 20% of the value of the assets in the trust to the wife.
Section 26 of MCA 1974 allows the court to make an order for 'maintenance pending suit' defined as an order for either party to pay periodical payments to the other for his/her maintenance. The court can back date the payments to the date of the petition but maintenance pending suit will cease upon the grant of decree absolute or the dismissal of the petition.
Section 27 of MCA 1974 provides similar powers to order periodical payments after the decree of divorce or judicial separation. In addition, the court can require the paying party to provide security for the periodical payments. The court has no jurisdiction to dismiss a party's application for maintenance of its own volition so as to effect a clean break.
The length and duration of an order for periodical payments is provided for in section 32 of MCA 1974. An order for periodical payments shall begin no earlier than the date of the application and shall extend for such term as the court considers appropriate but will come to an end on the death or remarriage of the party in whose favour the order is made.
While the court strives to effect a clean break between parties, where there is no consent to periodical payments being dismissed or while there is a demonstrated need on the part of the applicant, it is not unusual for maintenance to be awarded, particularly pending the outcome of the substantial ancillary relief application, often for substantial monthly sums.
In addition, orders providing a sum of maintenance specifically for the provision of legal fees are permissible and have become increasing common in recent years. In the case of F v F Divorce Jurisdiction 2010: No 22 the court held that there was a flexible discretionary power to order a sum of maintenance specifically for the provision of legal fees. In F v F, the court awarded BM$20,000 per month for legal costs from the date of the application until the interim award and continuing thereafter at BM$10,000 per month until final determination of the applications.
In relation to applications for maintenance pending suit, F v F (see Question 12), confirmed the proposition that the court has a wide and unfettered discretion to make such orders for periodical payments until the hearing as the court thinks reasonable, having regard to the means and needs of the parties. In F v F, the court awarded maintenance, in addition to the award for the provision of legal fees, at the rate of BM$22,000 per month, having regard not only to the disclosure provided, but also based on inferences derived from the husband's standard of living. Also, in the case of T v T, Divorce Jurisdiction 2103: No. 135, the court held on appeal that although it was unwilling to make specific findings about the husband’s financial position on an interim hearing, the court was prepared to take a "robust approach” regarding the husband’s ability to pay maintenance in light of the lack of clear and frank disclosure.
In exercising the discretion to make an order for periodical payments, the court has regard to the factors set out in section 29 of the MCA 1974 (see Question 9). The court will approach each case on a fact specific basis having regard to the needs of the parties compared against their earning potential, both in the present and foreseeable future.
In balancing these competing interests, the courts will have regard to the approach and guidance formulated in the leading UK authorities, subject to the differences in the MCA 1974 referred to in Question 10 above. The court will seek to bring finality to proceedings notwithstanding that there is no express power to dismiss a claim for periodical payments. The court strives to obtain the consent of the party against whom the order is being made.
There are three Acts which set out the court's jurisdiction to make maintenance orders for the benefit of children. They are:
MCA 1974 – sections 25 to 29
The orders that can be made for children of the family in connection with divorce proceedings include:
Secured periodical payments.
Lump sum provision (lump sum payments for the benefit of a child of the family are possible for the purpose of enabling a party to meet any liabilities or expenses reasonably incurred before making an application for periodical payments (section 27(3), MCA 1974)).
The obligation to pay maintenance for a child of the family continues to the child's eighteenth birthday unless the court specifies a later date, or if the child will be or is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (section 33(1) and section 33(3), MCA 1974).
The court must have regard to all of the circumstances of the case including:
The financial needs of the child.
The income, earning capacity (if any), property and other financial resources of the child.
Any physical or mental disability of the child.
The standard of living enjoyed by the family before the breakdown of the marriage.
The manner in which the child was being, and in which the parties to the marriage expected the child to be, educated or trained.
The court must, so far as it is practicable, place the child in the financial position in which the child would have been in if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him (section 29(2), MCA 1974).
CA 1998 - Part IVB (support obligations)
This Act governs unmarried parents' maintenance obligations. In January 2004, the Children Act was amended by the Children Amendment Act 2002. The amendments removed any distinction in law between children born inside or outside marriage, and revised the law relating to the obligation of parents to support their children.
Every parent has an obligation, to the extent the parent is capable of doing so, to provide support, in accordance with need, for his or her child. This obligation applies to an unmarried child who is under the age of 18 years or, if over 18 years of age, is enrolled in a full-time education or is unable, by reason of illness, disability or other cause, to withdraw from the charge of his or her parents or to obtain the necessaries of life (section 36.1B(1), CA 1998). The obligation does not extend to a child who is 16 years of age or older and has withdrawn from parental control (section 36.1B(2), CA 1998).
Under section 36.1C(2) and section 82 of the CA 1998, the factors that the court must consider include:
Parents' joint financial responsibility to maintain the child.
The relevant abilities of the parents to contribute.
The current assets and means.
The assets and means that each parent is likely to have in the future.
Each parent's capacity to provide support for the child.
The age and physical and mental health of each parent.
The needs of the child.
The measures available for the parents to become able to provide for the support of the child and the length of time and cost involved to enable the mother or father to take those measures.
Any legal obligation of each parent to provide support for another person.
The courts must also consider the desirability of the mother or father remaining at home to care for the child (section 36.1C(3) and section 36.1C(4), CA 1998).
MA 1950 – section 12
The MA 1950 empowers the Supreme Court to make orders related to the maintenance of a minor (a minor is defined as a person who has not yet reached the age of 18) when an application is made by the parents of a minor, the guardians of a minor or the person who has care and control of a minor. The welfare of the minor is the first and paramount consideration under section 12, MA 1950, and the court can make such orders as it sees fit having regard to the welfare of the child and to the conduct and to the wishes or representations of either party or any guardian or of any person having the actual charge of the minor.
Recent decisions in the Supreme Court have held that a judge, when considering an application under the MA 1950, could apply the relevant provisions of the CA 1998 as these statutes are of concurrent jurisdiction.
Calculation of child maintenance
There is no prescribed formula for the amount of maintenance awarded and each case will be decided on its own circumstances. The courts have wide discretionary powers but will seek to balance between the needs of the child and the means of the parties involved, while attempting to ensure that the child's best interests are met. The Supreme Court provided some guidance in its decision in S and S and RCL (Civil Jurisdiction 2009 No 213). This was encouraged by the Court of Appeal in its decision in M v W (Civil Appeal No 14 of 2009). The Court of Appeal held that neither adherence to a rigid principle of proportionality nor a contribution by each parent on the basis of equality should be strictly followed (M v W, Civil Appeal No 14 of 2009, paragraph 18). Further guidance was given by the Supreme Court in its decision in S v F, Civil Appeal 2013 No 5 of 2013.
Reciprocal enforcement of financial orders
There is a limited statutory framework for the registration and enforcement of maintenance orders and for the registration and enforcement of judgments.
The Maintenance Orders (Reciprocal Enforcement) Act 1974 makes provision for maintenance orders made in other signatory countries to be registered and enforced in Bermuda, and vice versa. The list of reciprocating countries is limited to those set out in the Maintenance Orders (Reciprocal Enforcement) (Designation) Order 1975 (1975 Order) (the countries are Barbados, Guernsey, Hong Kong, Jamaica, Jersey, New South Wales, Saint Vincent, The Isle of Man, The Leeward Islands, California, Connecticut, Florida, Hawaii, Maryland, Missouri, New Jersey, Ohio and the United Kingdom of Great Britain and Northern Ireland).
The Judgments (Reciprocal Enforcement) Act 1958 makes the registration of an English judgment possible so long as the court in the UK had jurisdiction to make the orders sought to be registered and the courts in the UK will be held to have had jurisdiction in relation to judgments where the jurisdiction of the court giving the judgment is recognised by the law of Bermuda. In cases involving the enforcement of judgments against a Bermuda trust, regard must be had to section 11 of the Trusts (Special Provisions) Act 1989 as amended by the Trusts (Special Provisions) Amendment Act 2004 (amended 1989 Act).
Non-UK judgments and maintenance orders from countries that are not listed in the 1975 Order are enforced in accordance with the common law by bringing an action on the foreign judgment and applying for summary judgments under the relevant Rules of the Supreme Court on the ground that the defendant has no defence to the claim (Ellefsen v Ellefsen, Civil Jurisdiction No 202 of 1993).
Financial relief after foreign divorce proceedings
The Recognition of Divorces and Legal Separations Act 1977 (1977 Act) provides the legislative framework whereby an individual can apply to the Supreme Court of Bermuda for relief under Part IV of the Matrimonial Causes Act 1974.
The 1977 Act sets out the narrow jurisdiction of the Supreme Court of Bermuda, which applies only in relation to any land or any interest in land in Bermuda and when the following two circumstances exist (section 9, 1977 Act):
The divorce or legal separation was obtained in proceedings in a country outside of Bermuda.
The validity of the divorce or legal separation is recognised by the law of Bermuda.
Section 6 of the 1977 Act confirms that no overseas divorce or legal separation is recognised as valid in Bermuda except as provided for in the Act, and sections 2 to 8 of the 1977 Act provide the framework for having an overseas divorce or legal separation recognised in Bermuda (see Question 6).
MCA 1974 – section 46
The Supreme Court has jurisdiction to make such orders as it sees fit for the custody and education of a child of the family who is under the age of 18 years in cases of divorce. Custody is defined by the Act as including access to the child.
MCA 1950 – section 12
The Supreme Court also has jurisdiction to make orders related to the custody and right of access to a child when an application is made by the parents of a minor, the guardians of a minor, or the person who has care and control of a minor under section 12 of the MA 1950. The court can make such orders as it sees fit having regard to the welfare of the child and to the conduct and to the wishes or representations of either party or any guardian or of any person having the actual charge of the minor. Neither parent has a superior claim in an application before the court than that of the other parent.
CA 1998 – Part IVA (custody jurisdiction and access)
The Act was recently amended by the Children Amendment Act 2014 (CA 2014), although the CA 2014 has not yet come into force.
Section 6 and section 36B of the CA 1998 sets out the welfare principle and provides that in the administration and interpretation of the Act, the welfare of the child is the paramount consideration when determining custody and incidents of custody and access to children. The CA 2014 will add that the purpose of the Act is to recognise the value of both parents in the upbringing of a child (section 36B(d), CA 2014).
The starting point is that a father and mother have parental responsibility for a child, are joint guardians of the child and are equally entitled to custody of the child (section 36C(1), CA 1998). A person entitled to custody has the rights and responsibilities of a parent including the right to care, and control of the child and the right to direct the education and religious training of the child (section 36C(2), CA 1998). The entitlement to access under the CA 1998 includes the right to make reasonable inquiries and to be given information as to the health, education and welfare of the child. Where parents live separately and the child lives with one of them with the consent of the other, the right of the other to custody and the incidents of custody (but not the entitlement to access) is suspended (section 36C(4), CA 1998).
Based on the decision in M v W (see Question 14), when exercising its discretion under section 12 of the MA 1950, the court may take into consideration the framework set out in the CA 1998 in relation to custody and access.
The guiding principle in custody and care and control applications is that the welfare of the minor is paramount, and that neither parent has a superior claim in an application before the court than that of the other parent. Under the CA 2014 the definition of parent will be amended to specifically include a father or mother of a child, whether or not they have been married. While some guidance can be obtained from the relevant jurisprudence, each decision will turn upon the facts of the particular case.
Early cases stand for the proposition that, as a general rule, a single home is most likely to be consistent with the best interests of children, but that those interests must always be determined on a case-by-case basis (Coles v Coles, Divorce Jurisdiction 2001: No 13; Re J & H (Minors) (Care and Control) 2004; Re D (a child) (Care and Control) Divorce Jurisdiction 2004: No 62; J v J, Divorce Jurisdiction 2005: No 182). In more recent cases, the courts have increasingly found that joint care and control is in the best interests of the child and despite having no statutory framework to do so have used guidance provided by A v A 1 FLR to help manage the shared care and control order and to forestall future miscommunications (Re T, S v T  Bda LR 8; S v S, Divorce Jurisdiction 2004: No 187 (in which the initial decision of Justice Greaves ( Bda LR 49) was appealed and the Court of Appeal upheld the appeal and remitted the case back to the Supreme Court for rehearing)).
The CA 2014 will update the orders available to include a co-parenting order under section 36GE of the Act (section 36D and section 36F(1)(aa), CA).
The United Kingdom extended the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) to Bermuda through a Note that was filed with the Ministry of Foreign Affairs in the Netherlands in December 1998 (Article 39, Hague Convention). The extension of the Hague Convention to Bermuda was recognised by the United States in March 1999.
The Hague Convention was implemented in Bermuda by way of the International Child Abduction Act 1998 (1998 Act) and the subsequent International Child Abduction (Parties to Convention) Order 1999 (1999 Order). The Central Authority in Bermuda is the Attorney General.
Applications under the Hague Convention are made by way of originating summons to the Supreme Court, and the Order 118 of Rules of the Supreme Court sets out the procedure when making such an application.
Domestic laws regarding child abduction
The CA 1998 provides the court with the power to enforce custody and access orders and preventative measures to stop the removal of children from Bermuda (section 36O and sections 36S to 36Y, CA 1998).
The MA 1950 specifically sets out the procedure for emergency non- removal applications, which may be made on an ex-parte basis (section 22, MA 1950 along with Minors Act (Applications under section 22) Rules 1964).
To prevent the abduction of children during divorce proceedings, a parent can make a without notice ex-parte application to the Supreme Court for an order prohibiting the removal of a child of the family without the leave of the court (section 94, Matrimonial Causes Rules 1974 (MCR 1974)).
Leave to remove/applications to take a child out of the jurisdiction
Upon the grant of decree nisi, travel restrictions are automatically put in place in respect of any child of the family ensuring that neither parent can remove the child from the jurisdiction without the express written consent of the other parent or permission from the court. The order includes a prohibition on the issue of any further travel documents by the Department of Immigration for the said child.
Parties can agree to waive these restrictions at the divorce hearing or any time thereafter. Barring agreement, the parent wishing to travel with the child or to relocate with the child must either obtain the written consent of the other parent or make an application to the court for permission to do so.
Applications to remove a child are primarily governed by the welfare principle and the determination of the child's best interests (section 94 MCR 1974, sections 12 and 22, MA 1950 along with Minors Act (Applications under section 22) Rules 1964, section 36U, CA 1998).
The Supreme Court typically deals with three main types of removal applications:
Where the parent is seeking to return to his or her permanent overseas home.
Where a Bermudian parent seeks to relocate abroad either on a permanent or temporary basis.
When a party wishes to travel for holiday purposes with the child.
In the permanent removal cases, the Bermuda courts have endorsed the approach and principles outlined in the UK decision of Payne v Payne  1 FLR1052 and the UK decisions that have followed including ( Re Y (Leave to Remove from Jurisdiction)  2 FLR 330 and K v K (Relocation Shared Care Arrangement  EWCA Civ 793 andFisher v Fisher and Stirling 1997 Divorce Jurisdiction No 88  Bda LR 71; Robinson v Robinson 2001 Divorce Jurisdiction No 149 (2004); M v M  Bda LR 66; C v C (Re T) Divorce Jurisdiction 2008: No 42). The court considered the cases involving shared care arrangements versus primary care parents in S and S and RCL 2009, Civil Jurisdiction No 213 and BJ and J (Re K- Permanent Removal) 2013 2009, Divorce Jurisdiction No 154.
The Bermuda courts have also relied on the principle outlined in the decision of M v M ( Bda LR 66, paragraph 13) that the right of freedom of movement is protected by section 11 of the Bermuda Constitution and matrimonial courts should be reluctant to make orders which punish primary carers, whether they are Bermudians or foreign nationals, for seeking to exercise constitutional mobility rights.
There is currently no specific legislative framework in place in relation to surrogacy, and the issue has not been dealt with in any reported Bermudian jurisprudence.
However, parties can refer to:
Section 12 of the MA 1950, which allows any person having actual charge of a minor to apply to the court seeking orders related to guardianship, custody, maintenance or access.
Section 36D of the CA 1998 which allows any other person to apply to the court for an order respecting custody of, or access to, a child or to determine any aspect of the incidents of custody of or access to the child.
Further, the provisions of the Adoption of Children Act 1963 may offer some assistance.
The Adoption of Children Act 2006 (ACA 2006) and the Adoption of Children Amendment Act 2011 (ACAA 2011) along with the accompanying Adoption of Children Regulations 2013 and Adoption of Children Rules 2013 came into effect on the 4 November 2013 resulting in updates to the adoption laws and rules.
Section 3 of the ACA 2006 provides the principles to be considered when making a decision about the placement or adoption of a child. The director of child and family services remains responsible for the administration of adoptions in Bermuda, and the director's duties are set out in section 9 of the ACA 2006. Under section 9(2) of the ACA 2006, the director can only place a child for adoption with prospective parents who have been approved by the director on the basis of a home study (section 10, ACA 2006) and whose names are entered on the Adopter's Register, which is maintained by the minister in charge of child and family services (section 6, ACA 2006).
A person seeking to adopt a child must apply to the Magistrates Court for an adoption order (section 27(1), ACA 2006). A child is defined as a person less than 18 years of age but does not include a person who is or has been married. The Magistrates Court has jurisdiction to make an order when the (section 25, ACA 2006):
Child to be adopted is a resident of Bermuda or was born in Bermuda.
Person having parental responsibility for the child is a resident of Bermuda, or is the director of child and family services.
Applicant is a resident of Bermuda.
The recent decision in AB and the Director and AG  Civil Jurisdiction No 208 confirmed who is able to apply to adopt a child, and declared the word “married” in section 28 of ACA 2006 to be inoperative. It was held that a joint application could be made by an unmarried couple, whether same sex or different sex provided they have been living together for a continuous period of not less than one year immediately before their application. Applicants over 18 years of age can include:
A couple provided they have been living together for a continuous period of not less than one year immediately before their application.
A relative of the child who can jointly apply with a parent of the child (so that the child has a mother and a father).
A person who has had the child in their care for at least three months prior to the application, or a shorter period as authorised by the court. There is an exemption in relation to the three month time period made for step parents.
Before an order is made the following documents must be filed (section 31, ACA 2006):
All the required consents for the adoption or orders dispensing with consent or an application to dispense with consent (Division 2, ACA 2006).
The child's birth certificate or, if it cannot be obtained, satisfactory evidence of the facts relating to the child's birth.
If the child is between seven and 12 years of age, a copy of the report of the child's views prepared in accordance with section 26 of the ACA 2006 or a satisfactory explanation of why the report has not been prepared. (The court is permitted to consider the child’s views if they can be reasonably ascertained and give the child the right to be heard where practicable to do so.)
Any agreement for continuing contact concluded under section 14 of the ACA 2006.
The post-placement report, if required under section 32 of the ACA 2006.
Any additional information that may be prescribed.
No person is authorised to place a child for adoption overseas without the permission of the director (section 11, ACA 2006), and prospective parents must obtain the approval of the court before a non-resident child is brought to Bermuda. Sections 46 to 48 of the ACA 2006 deal with overseas adoptions.
Bermuda does not recognise common-law marriages. Except for claims brought pursuant to the CA 1998 in relation to financial support for any children (section 31.6, CA 1998), and common law claims relating to real property, there is no legislation governing financial rights between unmarried couples.
Co-habitees that hold property in their joint names (as joint tenants) or in unequal shares (a tenant in common) can look to the Partition Act 1855 and Partition Act 1914 for relief. Generally, properties held in joint tenancy will be shared equally and property held in tenancy in common will be shared in accordance with each party's relative share. However, in Hassell v Furbert and Furbert, Civil Jurisdiction 2004, No 248 and Wellman v Wellman et al, Civil Jurisdiction 2010, No 11, the court determined that it could treat joint tenants as tenants in common in cases where the parties had contributed in unequal shares to the property's purchase. In that case, the court calculated each party's contribution to the property and determined the percentage that each party would receive based on their percentage contribution.
In the case of Stevens v Astwood, Civil Jurisdiction 2010, No 365, the court considered its jurisdiction to make a Mesher order postponing the sale of a property jointly owned by unmarried co-habitees who had children together. It held that the matrimonial statutory regime explicitly placed marital assets into a separate legal box and subjected them to distinct legal rules. The court concluded that there would need to be express legislation for the court to interfere with the property rights of non-married couples under the general law. To do otherwise would potentially represent a compulsory acquisition of property in violation of section 13 of the Bermuda Constitution. Justice Kawaley did expressly state that this case did serve to identify a need for law reform.
To establish an interest in a property which is not in joint names, a cohabitant would have to rely on the doctrine of constructive and resulting trust.
Family dispute resolution
Mediation, collaborative law and arbitration
There is a movement towards utilising alternative dispute resolution processes in Bermuda in an effort to reduce costs and acrimony in proceedings. There are a number of experienced practitioners who are trained as mediators and arbitrators. Arbitration is not commonly used in matrimonial or family proceedings as parties find that its procedure and the associated costs as too similar to those in court proceedings to gain any advantage.
A Collaborative Law Alliance has been established in Bermuda and there are a number of trained collaborative law specialists as well. It is also common for parties and their attorneys to engage in without prejudice roundtable discussions to reach resolution of claims without proceeding through the courts. Parties are able to take advantage of these processes on a voluntary basis.
The agreements reached under the auspices of mediation, arbitration and collaborative law often contain their own provisions for the enforcement or review of the agreement. With collaborative law, if there is a breakdown in the agreement, the parties have the option of reactivating the collaborative law process to resolve any breakdown as a starting point with the option of seeking the assistance of the court if the agreement has been entered as an order.
However in divorce proceedings, these agreements are typically reduced to a consent order and produced to the court for approval. These processes may also result in separation agreements, the terms of which are eventually entered as orders of the court on pronouncement of decree nisi.
The Rules of Supreme Court 1985 (as amended) which apply in matrimonial proceedings, include as part of the overriding objective, the court's duty to encourage parties to use an alternative dispute resolution procedure if the court considers that appropriate, and to facilitate the use of such procedure (Rules 1A, 1A4, Rules of Supreme Court 1985).
When the Children’s Amendment Act 2014 (CA 2014) comes into effect, it will require the courts to offer mediation to the parents of a child whose custody or access is being determined by the courts (section 36F(2)(b), CA 2014). The mediation procedure is set out in section 36GC of the CA 2014 and will be supplemented by the establishment of a Co-Parenting Mediation Council and mediation coordinator (section 36GA, CA 2014). Mediation will not be mandatory but, when the parents agree to mediation the court will order an initial mediation assessment of the parents, which will be conducted by a registered co-parenting mediator. The mediation assessment will determine if the parents are considered suitable for mediation. If they are, an order will be made referring the matter to mediation and all mediations will be carried out by a registered co-parenting mediator.
Civil partnership/same-sex marriage
Controversial areas and reform
Matrimonial and family law legislation in Bermuda is, for the most part, outdated and out of step with modern legislation in other common law jurisdictions. There have been many calls for immediate and urgent reform.
The Family Law Reform Sub-Committee was created in 2008 under the championship of Justice Norma Wade Miller. In 2009, the Sub-Committee produced a report entitled Justice for Families: a Review of Family Law in Bermuda. The Sub-Committee's conclusions were made after review of submissions from organisations, professionals and from the general public and on review of the current legislation and the present infrastructure.
As part of its recommendations, the report recommended a major overhaul of the current legislation related to families with the aim of modernising the legislation in order to keep pace with the changes in the UK legislation which have occurred over the past 30 years. The Committee also recommended improving the family court system in Bermuda by establishing a Unified Family Court bringing together the Magistrates' and Supreme Court's jurisdiction under one roof, providing a central administrative base and incorporating mediation as a cornerstone in the process. While the report did not deal with the rights of common law spouses and the rights of same-sex partners, it recognised that these topics required a more detailed assessment and possible eventual incorporation into the proposed Unified Family Court.
It is hoped that the newly formed government will continue to consider the recommendations of the report and implement the three key reforms:
The overhaul of the legislation.
The further use of mediation as a vital step in the process.
The establishment of the Unified Family Court.
In June 2013, the Chief Justice along with the Honorable Justice Wade-Miller of the Supreme Court commenced a review of Bermuda's family law regime in order to assess the necessity for legislative reform and it is hoped that this will result in major changes to the current legislation. There have been several decisions of the Supreme Court which have called for sweeping legislative reform and have emphasised the need to restructure the framework to facilitate the management of family proceedings (Stevens v Astwood, supra., BJ and J (Re K- Permanent Removal),supra and AB, supra).
Description. The website provides a helpful source of Bermuda legislation, including statutory regulations and rules and the Bermuda Constitution. The “Annual Laws” collection is arranged by year and contains all of the legislation passed by the Legislature, and Statutory Instruments made, from 1998 to the present (and some earlier material from 1993). The “Consolidated Laws” collection contains the amended text of legislation and is updated regularly.
Description. The Government of Bermuda website provides links to recorded decisions of the Supreme Court and the Court of Appeal. The webpage does not record all judgments handed down and often does not include matrimonial cases.
Description. Bermuda case law can also be found on the Justis website. Decisions of Her Majesty’s Privy Council (Bermuda’s highest Court).
There are no published Magistrates Court decisions.
Adam Richards, Director
Marshall Diel & Myers Limited
Professional qualifications. England and Wales, Barrister, 2003 (non-practising); Bermuda, 2010.
Areas of practice. Matrimonial; family.
- Adam handles all aspects of divorce and family law with a particular emphasis on the financial consequence of relationship breakdown.
- Recent experience includes high net worth ancillary relief claims with complex trust structures and business valuations, and contentious applications for permanent leave to remove children from the jurisdiction.
Professional associations/memberships. Member, Bermuda Bar Association; Commissioner of Oaths.
Publications. Co-author of Bermuda Chapter, Family Law Jurisdictional Comparisons (2nd edition, 2013).
Rachael Barritt, Director
Marshall Diel & Myers Limited
Professional qualifications. Ontario, Canada, 2002 (not currently practising); Bermuda, 2002.
Areas of practice. Matrimonial; family.
- Rachael handles all aspects of divorce and family law with a particular emphasis on the financial consequence of relationship breakdown.
- Recent experience includes drafting pre-nuptial agreements and contentious applications for permanent leave to remove children from the jurisdiction.
Non-professional qualifications. Queen's University, Ontario, Canada, (B.A., Sociology, 1997)
Professional associations/memberships. Member, Bermuda Bar Association; Commissioner of Oaths; Notary Public; Member, Employment Tribunal.
Publications. Co-author of Bermuda Chapter, Family Law Jurisdictional Comparisons (2nd edition, 2013).