Matrimonial Causes Ordinance, 1961

ST HELENA REVISED EDITION OF THE LAWS, 2017 FAMILY. EDUCATION AND WELFARE MATRIMONIAL CAUSES ORDINANCE, 19611 Ordinance 1 of 1961 In force 10 February 1961 Amended by Ordinances 8 of 1978, 2 of 1989, 12 of 2017 Subsidiary legislation: MATRIMONIAL CAUSES RULES, 1973 Page 11 Legal Notice 4 of 1973 Amended by L.N. 6/1979 and L.N. 2/2018 _____________________ MATRIMONIAL CAUSES ORDINANCE, 1961 ARRANGEMENT OF SECTIONS 1. Short title 2. Jurisdiction Divorce 3. Restriction on petitions for divorce during first 3 years after marriage 4. Breakdown in marriage the sole ground for divorce 5. Proof of breakdown 6. Reconciliation 7. Decree to be refused in certain circumstances 8. Power to rescind decree nisi in certain cases 9. Financial protection for respondent in certain cases 10. Repealed 11. Repealed 12. Repealed 13. Grant of relief to respondent if petition opposed Nullity of Marriage 14. Petition for nullity of marriage 15. Grounds of decree of nullity Decree Absolute of Divorce or Nullity of Marriage 1 Under section 10 of the Revised Edition of the Laws Ordinance, 1999 this text is authoritative and is the sole authentic edition in respect of the law contained in it as at 5 March 2018. 2 16. When decree is to be made absolute 17. Decree of presumption of death and dissolution of marriage Judicial Separation 18. Grounds for judicial separation 19. Property and acts of spouse after judicial separation 20. Power to reverse a decree Maintenance 21. Maintenance pending the hearing of the suit 22. Permanent maintenance Custody and Maintenance of Children 23. Custody and maintenance of children Procedure 24. Rules of procedure 25. Rules of evidence 26. Sittings in camera AN ORDINANCE providing for divorce, maintenance and custody of children. Short title 1. This Ordinance may be cited as the Matrimonial Causes Ordinance, 1961. Jurisdiction 2. (1) The Supreme Court of St Helena (hereinafter called “the court”) is a court for divorce and matrimonial causes and has jurisdiction to make decrees of divorce, of nullity of marriage, of judicial separation and of presumption of death and dissolution of marriage in accordance with this Ordinance. (2) In proceedings for divorce, nullity of marriage, or presumption of death and dissolution of marriage, the jurisdiction of the court extends to cases in which either of the parties to the marriage is domiciled in St Helena at the time of commencement of the proceedings and remains so domiciled at the time of the hearing. (3) In proceedings for judicial separation, such jurisdiction extends to cases in which either of the parties to the marriage is either domiciled or resident in St Helena at the time of commencement of the proceedings and remains so domiciled or resident at the time of the hearing. (4) In the exercise of such jurisdiction the court must, subject to this Ordinance, act and give relief on principles which in the opinion of the court are as nearly as may be conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial causes. 3 Divorce Restriction on petitions for divorce during first 3 years after marriage 3. (1) Subject to subsection (1A), a petition for divorce may not be presented to the court unless at the date of the presentation of the petition 3 years have passed since the date of the marriage. (1A) A judge of the court may, upon application made to the court, allow a petition to be presented before 3 years have passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case the court may - (a) if it pronounces a decree nisi, do so subject to the condition that no application to make the decree absolute is to be made until after the expiration of 3 years from the date of the marriage; or (b) dismiss the petition without prejudice to any petition which may be brought after the expiration of the said 3 years upon the same or substantially the same facts as those proved in support of the petition so dismissed. (2) In determining any application under this section for leave to present a petition before the expiration of 3 years from the date of the marriage, regard must be had to the interests of any children of the marriage and to the question whether there is reasonable probability of a reconciliation between the parties before the expiration of the said 3 years. (3) Nothing in this section prohibits the presentation of a petition based upon matters which have occurred before the expiration of 3 years from the date of the marriage. Breakdown in marriage the sole ground for divorce 4. The only ground on which a petition for divorce may be presented to the court by either party to the marriage is that the marriage has broken down irretrievably. Proof of breakdown 5. (1) The court hearing a petition for divorce must not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts— (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition; (d) that the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition and the respondent consents to a decree being granted; (e) that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition. 4 (2) On a petition for divorce it the court must inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent. (3) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (1), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it must, subject to section 7, grant a decree nisi of divorce. (4) For the purpose of subsection (1)(c) the court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing the necessary intention if the evidence before the court is such that, had that party not been so incapable, the court would have inferred that his or her desertion continued at that time. (5) For the purposes of this Ordinance, a husband and wife are to be treated as living apart unless they are living with each other in the same household. (6) Provision must be made by rules of court for the purpose of ensuring that if pursuant to subsection (1)(d) the petitioner alleges that the respondent consents to a decree being granted, the respondent has been given such information as will enable the respondent understand the consequences to the respondent of consenting to a decree being granted and the steps which the respondent must take to indicate that he or she consents to the grant of a decree. Reconciliation 6. (1) The court must inquire into the possibilities of reconciliation and if at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for a period it thinks fit to enable attempts to be made to effect such a reconciliation. (1A) The power conferred by subsection (1) is additional to any other power of the court to adjourn proceedings. (2) If the parties to the marriage have lived with each other for any period or periods after it became known to the petitioner that the respondent had, since the celebration of the marriage, committed adultery, then— (a) if the length of that period or of those periods together was 6 months or less, their living with each other during that period or those periods is to be disregarded in determining for the purposes of section 5(1)(a) whether the petitioner finds it intolerable to live with the respondent; but (b) if the length of that period or of those periods together exceeded 6 months, the petitioner is not entitled to rely on that adultery for the purposes of section 5(1)(a). (3) If the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him or her but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support the petitioner’s allegation, that fact is to be disregarded in determining for the purposes of section 5(1)(b) whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together was 6 months or less. 5 (4) In considering for the purposes of section 5(1) whether the period for which the respondent has deserted the petitioner or the period for which the parties to a marriage have lived apart has been continuous, no account is to be taken of any one period (not exceeding 6 months) or of any 2 or more periods (not exceeding 6 months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other counts as part of the period of desertion or of the period for which the parties to the marriage lived apart, as the case may be. (5) References in this section to the parties to a marriage living with each other are references to their living with each other in the same household. (6) In computing the period or periods aggregating to not more than 6 months during which the parties may attempt reconciliation as provided in this section, there is not to be counted any period during which either of the parties to a marriage is absent from St Helena. Decree to be refused in certain circumstances 7. (1) The respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in section 5(1)(e) may oppose the grant of a decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship to him or her and that it would in all the circumstances be wrong to dissolve the marriage. (2) If the grant of a decree nisi is opposed by virtue of this section, then— (a) if the court is satisfied that the only fact mentioned in section 5(1) on which the petitioner is entitled to rely in support of the petition is that mentioned in paragraph (e); and (b) if apart from this section the court would grant a decree nisi, the court must consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties, and of any children or other persons concerned, and if of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage, must dismiss the petition. (3) For the purposes of this section hardship includes the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved. Power to rescind decree nisi in certain cases 8. If the court on granting a decree of divorce held that the only fact mentioned in subsection (1) of section 5 on which the petitioner was entitled to rely in support of his petition was that mentioned in paragraph (d) of that subsection, it may, on an application by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to consent to the grant of a decree. Financial protection for respondent in certain cases 9. (1) The following provisions of this section have effect if— (a) the respondent to a petition for divorce in which the petitioner alleged any such fact 6 as is mentioned in section 5(1)(d) or (e) has applied to the court under this section for it to consider for the purposes of section 9(2) the financial position of the respondent after the divorce; and (b) a decree nisi of divorce has been granted on the petition and the court has held that the only fact mentioned in the said section 5(1) on which the petitioner was entitled to rely in support of his petition was that mentioned in paragraph (d) or (e). (2) The court hearing an application by the respondent under this section must consider all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first. (2A) Notwithstanding the foregoing provisions, but subject to subsection (3), the court must not make absolute the decree of divorce unless it is satisfied that— (a) the petitioner should not be required to make any financial provision for the respondent; or (b) the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances. (3) The court may if it thinks fit proceed without observing the requirements of subsection (2) if— (a) it appears that there are circumstances making it desirable that the decree should be made absolute without delay; and (b) the court has obtained a satisfactory undertaking from the petitioner that he or she will make financial provision for the respondent that the court approves. Husband may claim damages from adulterer 10. Repealed by Ord. 12 of 2017 w.e.f. 24 May 2017 Costs against co-respondent 11. Repealed by Ord. 12 of 2017 w.e.f. 24 May 2017 Dismissal of co-respondent or respondent from proceedings 12. Repealed by Ord. 12 of 2017 w.e.f. 24 May 2017 Grant of relief to respondent if petition opposed 13. In any suit for divorce, if the respondent alleges against the petitioner and proves any such fact as is mentioned in section 5(1), the court may give the respondent on his or her application the same relief to which he or she would have been entitled if he or she had presented a petition seeking such relief. 7 Nullity of Marriage Petition for nullity of marriage 14. Any husband or wife may present a petition to the court praying that his or her marriage may be declared void. Grounds of decree of nullity 15. (1) Subject to subsection (1A), a decree of nullity of marriage may be made on any of the following grounds— (a) that the respondent was impotent at the time of the marriage and is impotent at the time of the institution of the suit; (b) that the parties are within the prohibited degrees of consanguinity or affinity; (c) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force; (d) that the consent of either party to the marriage was obtained by force or fraud in any case in which the marriage might be annulled on such grounds by a court of law in England; (e) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; (f) that either party was of unsound mind at the time of the marriage; (g) that the respondent was at the time of the marriage suffering from venereal disease in a communicable form; (h) that the respondent was at the time of the marriage pregnant by some person other than the petitioner; (i) that the marriage is invalid by the law of St Helena and Ascension. (1A) In the cases specified in paragraphs (f), (g) and (h) of subsection (1), the court must not grant a decree unless it is satisfied that— (a) the petitioner was at the time of the marriage ignorant of the facts alleged; (b) proceedings were instituted within a year of the date of the marriage; and (c) marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the grounds for a decree. (2) Any child born of a marriage avoided pursuant to subsection (1)(d), (f), or (g) is a legitimate child of the parties thereto even though the marriage is so avoided, and any child born of a marriage avoided pursuant to subsection (1)(c) is a legitimate child of the parties, if it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, even though the marriage is so avoided. Decree Absolute of Divorce or Nullity of Marriage When decree is to be made absolute 16. (1) A decree of divorce or nullity of marriage may be made absolute after the expiration of a time, not being less than 3 months from the making of it, prescribed by rules made in accordance with section 24, or as specified in the decree. 8 (2) During that period any person may, in a manner prescribed by rules made in accordance with section 24, or as specified in the decree, show cause why the decree should not be made absolute because material facts were not brought before the Court. (3) On cause being so shown the court must make the decree absolute, or reverse the decree nisi, or require further inquiry, or otherwise deal with the case as justice demands. (4) The court may order the costs arising from such cause being shown to be paid by such parties, or such one or more of them, as it thinks fit. (5) If a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of 3 months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in subsection (3). Presumption of Death and Dissolution of Marriage Decree of presumption of death and dissolution of marriage 17. (1) Any husband or wife who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court if satisfied that such reasonable grounds exist may make a decree of presumption of death and of dissolution of the marriage. (2) In any such proceedings the fact that for a period of 7 years or upwards the other party to the marriage has been continually absent from the petitioner and the petitioner has no reason to believe that the other party has been living within that time is evidence that the other party is dead unless the contrary be proved. Judicial Separation Grounds for judicial separation 18. The court may make a decree of judicial separation on the petition of either the husband or the wife on any ground upon which it may make a decree of divorce. Property and acts of spouse after judicial separation 19. (1) In every case of a judicial separation – (a) each spouse is, from the date of the decree and while the separation continues, to be considered as a sole owner with respect to the property of every description which that spouse acquires or which devolves upon him or her; (b) such property may be disposed of by that spouse in all respects as a sole owner; and (c) on the intestate death of either spouse, such property will devolve as if that party’s spouse had pre-deceased him or her. (2) If either party again cohabits with his or her spouse, all the property that he or 9 she is entitled to when such cohabitation commences, is to be held to that party’s separate use, subject however to any agreement in writing made between that party and his or her spouse while separate. Power to reverse a decree 20. The court may on due cause being shown reverse a decree of judicial separation. Maintenance Maintenance pending the hearing of a suit 21. (1) In any suit under this Ordinance, either party may present a petition for maintenance pending the hearing of the suit. (2) Such a petition must be served on the defendant and the court may make such order on the defendant for payment to the petitioner of maintenance as it considers just. Permanent maintenance 22. (1) On any decree absolute of divorce or nullity of marriage or on any decree of judicial separation, the court may, if it sees fit – (a) order that one party must secure to the other party such gross sum of money, or such annual sum of money for any term not exceeding that other party’s life, as, having regard to the circumstances, the court considers reasonable; or (b) make an order on either party for the payment to the other party during their joint lives of such monthly or weekly sum for his or her maintenance and support as the court considers reasonable. (2) If a party on whom an order for payment is made under subsection (1) from any cause becomes unable to make such payment, the court may discharge or modify the order or temporarily suspend the order as to the whole or any part of the money so ordered to be paid, and again revive the same order wholly or in part, as the court considers reasonable. Custody and Maintenance of Children Custody and maintenance of children 23. (1) The court after a final decree of judicial separation, nullity of marriage or divorce may upon application by petitioner for this purpose make from time to time any orders and provisions with respect to the custody, maintenance and education of any children, the marriage of whose parents was the subject of the decree, or for placing any such children under the protection of the Court, as the court thinks fit. (2) The term for which any sum of money is secured for the benefit of a child under subsection (1) must not extend beyond the date when the child will attain 21 years of age. 10 Procedure Rules of procedure 24. The Chief Justice, with the approval of the Governor, may make such rules concerning practice and procedure under this Ordinance as the Chief Justice considers expedient. Rules of evidence 25. The rules of evidence observed in the High Court of Justice in England are, subject to any law of evidence in force in St Helena and Ascension, applicable to and observed in the conduct of any suit under this Ordinance. Sittings in camera 26. The whole or any part of any proceedings under this Ordinance may be heard in camera if the Court thinks fit. ___________ 11 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 (Section 24) TABLE OF CONTENTS Preliminary 1. Citation 2. Interpretation 3. Application of other rules Commencement of Proceedings 4. Application under section 3 5. Discontinuance 6. Cause to be begun by petition 7. Signing of petition 8. Presentation of petition 9. Revoked Service of Petition, etc. 10. Service of petition 11. Notice of intention to defend Pleadings and Amendment 12. Supplemental petition and amendment of petition 13. Service of supplemental or amended petition 14. Filing of answer to petition 15. Filing of reply, etc. 16. Filing of pleading after directions for trial 17. Contents of answer and subsequent pleadings 18. Allegations against third parties in pleading 19. Service of pleading 20. Supplemental answer and amendment of pleadings 21. Particulars of case Preparations for Trial 22. Discovery of documents, etc. in defended cause 23. Discovery by interrogations in undefended cause 24. Revoked 25. Revoked 26. Directions for trial Evidence 27. Evidence generally to be taken orally 12 28. Evidence by affidavit etc. 29. Evidence of marriage outside St Helena 30. Saving for judge’s powers Trial, etc. 31. Mode of trial 32. Right to be heard on ancillary questions Decrees and Orders 33. Decrees and orders 34. Copies of decrees and orders 35. Service of order 36. Service of decree or order requiring act to be done 37. Intervention by any person to show cause 38. Rescission of decree nisi by consent 39. Decree absolute 40. Certificate of decree absolute 41. Rescission of decree of judicial separation Ancillary Relief 42. Application by petitioner or respondent for ancillary relief 43. Application for maintenance of children 44. Application in Form 8 45. General provisions as to evidence, etc., on application for ancillary relief 46. Evidence on application to discharge, etc., order for maintenance 47. Service of affidavit, or answer, or reply 48. Investigation by Registrar of application for ancillary relief 49. Hearing of applications 50. Request for periodical payments order at same rate as order for maintenance pending suit Applications Relating to Children 51. Custody, care and supervision of children 52. Access to children 53. Removal of child out of St Helena Disability 54. Person under disability must sue by next friend, etc. 55. Service on person under disability 56. Petition for nullity on ground of insanity, etc. 57. Separate representation of children Schedule: Forms 13 MATRIMONIAL CAUSES RULES, 1973 Preliminary Citation 1. These Rules may be cited as the Matrimonial Causes Rules, 1973. Interpretation 2. (1) In these rules, unless the context otherwise requires— “ancillary relief” means and includes— (a) a lump sum order; (b) an order for maintenance pending suit; (c) a periodical payments order; (d) a maintenance of children order; “child of the family”, in relation to the parties to a marriage, means— (a) a child of both those parties; and (b) any other child who has been treated by both of those parties as a child of their family; “Civil Procedure Rules” means the Civil Procedure Rules, 1969, made under the Civil Procedure Ordinance, 1968; “court” means a judge or the Registrar; “Form” means a form as set out in the Schedule to these Rules; “defended cause” means a cause not being an undefended cause; “judge” means the Chief Justice of St Helena or the Acting Chief Justice; “matrimonial proceedings” means any proceedings with respect to which rules may be made under section 24 of the Ordinance; “Registrar” means the Registrar of the Supreme Court; “solicitor” includes a person advocating the cause of another with the consent of the Chief Justice; “Supreme Court” means the Supreme Court of St Helena; “undefended cause” means— (a) in the case of an application under section 3 of the Ordinance - a cause in which the respondent has not given notice of intention to defend within the time limited; (b) in any other case - a cause in which no answer has been filed or any answer filed has been struck out; (c) a cause which is proceeding only on the respondent’s answer in which no reply or answer to the respondent’s answer has been filed or any such reply or answer has been struck out. (2) Unless the context otherwise requires, any reference in these Rules to any rule or enactment is to be construed as a reference to that rule or enactment as amended, extended or applied by any other rule or enactment. 14 Application of other rules 3. Subject to these Rules the Civil Procedure Rules apply with necessary modifications to the commencement of matrimonial proceedings and the practice and procedure in matrimonial proceedings pending in the Supreme Court. Commencement of Proceedings Application under section 3 4. (1) An application under section 3 of the Ordinance for leave to present a petition for divorce before the expiration of 3 years from the date of the marriage must be made by originating application. (2) The application must be filed with the Registrar together with— (a) an affidavit by the applicant exhibiting a copy of the proposed petition and stating— (i) the grounds of the application; (ii) particulars of the hardship or depravity alleged; (iii) whether there has been any previous application under the said section 3; (iv) whether any, and if so what, attempts at reconciliation have been made; (v) particulars of any circumstances which may assist the Court in determining whether there is a reasonable probability of reconciliation between the parties; (vi) the date of birth of each of the parties or, if it be the case, that he or she has attained 18 years; (b) a copy of the application and of the supporting affidavit for service on the respondent; and (c) unless otherwise directed on an application made ex parte, a certificate of the marriage. (3) The Registrar must annex to the copy of the application for service a copy of the supporting affidavit and a notice in Form 1 with Form 4 attached. (4) The application must be heard by the Chief Justice and must, unless otherwise directed, be heard in Chambers. Discontinuance 5. Before a petition is served on any person, the petitioner may file a notice of discontinuance and the cause thereupon stands dismissed. Cause to be begun by petition 6. (1) Every cause other than application under section 3 of the Ordinance must be begun by petition. (2) Unless otherwise directed, every petition must contain the information required by Form 2 (as near as may be in the order there set out) and any further or other information 15 required by any of the following sub-rules of this rule that are be applicable. (3) A petition for a decree of nullity under section 15(1) of the Ordinance must state whether the petitioner was at the time of the marriage ignorant of the facts alleged and whether marital intercourse with the consent of the petitioner has taken place since the discovery by the petitioner of the existence of grounds for a decree. (4) A petition for a decree of presumption of death and dissolution of marriage must state— (a) the last place at which the parties to the marriage co-habited, the circumstances in which the parties ceased to cohabit, the date when and the place where the respondent was last seen or heard of, and the steps which have been taken to trace the respondent; and (b) the domicile, occupation and residence of the petitioner. Signing of petition 7. Every petition must be signed by counsel if settled by counsel and, if not, by the petitioner’s solicitor in his or her own name or the name of his or her firm, or by the petitioner if he or she sues in person. Presentation of petition 8. (1) A petition may be presented to the Registrar as provided in this rule. (2) Unless otherwise directed on an application made ex parte, a certificate of the marriage to which the cause relates must be filed with the petition. (3) If there is before the Supreme Court a petition which has not been dismissed or otherwise disposed of by a final order, another petition by the same petitioner in respect of the same marriage must not be presented without leave granted on an application made in the pending proceedings. (4) The petition must be presented by filing it in the Registry with as many copies of the petition as there are persons to be served. (5) The Registrar must enter the cause in the action book. Parties 9. Revoked by L.N. 2 of 2018 w.e.f. 5 March 2018 Service of Petition, etc Service of petition 10. (1) Subject to this rule, a copy of every petition must be served personally or by post on every respondent or co-respondent. 16 (2) Service may be effected— (a) if the party to be served is a person under disability within the meaning of rule 54 - through the petitioner; and (b) in any other case - through the court, or if the petitioner so requests, through the petitioner. (3) Personal service may in no case be effected by the petitioner himself or herself. (4) A copy of any petition which is to be served through the court must be served by an officer of the court. (5) For the purposes of sub-rules (1) to (4), a copy of a petition is deemed to be duly served if— (a) an acknowledgement of service in Form 4 is signed by the party to be served and is returned to the court office; and (b) if the form purports to be signed by a respondent spouse, his signature is proved at the hearing. (6) If a copy of a petition has been sent to a party and no acknowledgement of service has been returned to the court office, the Registrar, if satisfied by affidavit or otherwise that the party has nevertheless received the document, may direct that the document be deemed to have been duly served on the party. (7) If a copy of a petition has been served on a party personally and no acknowledgement of service has been returned to the court office, service must be proved by filing an affidavit of service showing the server’s means of knowledge of the identity of the party served. (8) An application for leave to substitute some other mode of service for the modes of service prescribed by sub-rule (1), or to substitute notice of the proceedings by advertisement or otherwise, must be made ex parte by lodging an affidavit setting out the grounds on which the application is made, and the form of any advertisement must be settled by the Registrar. (9) If it appears necessary or expedient to do so— (a) a judge may by order dispense with service of a copy of a petition on a respondent spouse; and (b) the Registrar may by order dispense with service of a copy of a petition on any other person. (10) An application to the Registrar for an order under sub-rule (9)(b) may, if no notice of intention to defend has been given, be made ex parte by lodging an affidavit setting out the grounds of the application. Notice of intention to defend 11. (1) In these Rules - (a) any reference to a notice of intention to defend is a reference to an acknowledgement of service in Form 4 containing a statement to the effect that the person by whom or on whose behalf it is signed intends to defend the proceedings 17 to which the acknowledgement relates; and (b) any reference to giving notice of intention to defend is a reference to returning such a notice to the Registry. (2) In relation to any person on whom there is served a document requiring or authorising an acknowledgement of service to be returned to the Registry, references in these rules to the time limited for giving notice of intention to defend are references to 8 days after service of the document, inclusive of the day of service, or any other time that may be fixed. (3) Notice of intention to defend a cause begun by petition may be given at any time before directions for trial are given, even if the time limited for giving the notice has expired. (4) Subject to sub-rules (2) and (3), a person may give notice of intention to defend even if the person has already returned to the court office an acknowledgement of service not constituting such a notice. Pleadings and Amendment Supplemental petition and amendment of petition 12. (1) A supplemental petition may be filed only with leave. (2) A petition may be amended without leave before it is served but only with leave after it has been served. (3) Subject to sub-rule (4), an application for leave under this rule— (a) may, if every opposite party consents in writing to the supplemental petition being filed or the petition being amended, be made ex parte by lodging in the Registry the supplemental petition or a copy of the petition as proposed to be amended; and (b) must, in any other case, be made by summons, to be served, unless otherwise directed, on every opposite party. (4) An order granting leave must— (a) if any party has given notice of intention to defend - fix the time within which the answer must be filed or amended; (b) if the order is made after directions for trial have been given - provide for a stay of the hearing until after the directions have been renewed. (5) An amendment authorised to be made under this rule must be made by filing a copy of the amended petition. (6) Rules 7 and 9 apply to a supplemental or amended petition as they apply to the original petition. Service of supplemental or amended petition 13. (1) Unless otherwise directed, a copy of a supplemental or amended petition, together with a copy of the order (if any) made under rule 12, must be served on every respondent and co-respondent named in the original petition or in the supplemental or amended 18 petition. (2) The petitioner must file the documents required by sub-rule (1) to be served on any person and thereupon, unless otherwise directed, rule 10(5) (except paragraph (a)) applies in relation to a person required to be served with an original petition. Filing of answer to Petition 14. (1) Subject to sub-rule (2) and to rule 16, a respondent or co-respondent who— (a) wishes to defend the petition or to dispute any of the facts alleged in it; (b) being the respondent spouse, wishes to make in the proceedings any charge against the petitioner in respect of which the respondent spouse prays for relief, must, within 21 days after the expiration of the time limited for giving notice of intention to defend, file an answer to the petition. (2) An answer may be filed at any time before directions have been given for the trial of the cause, even if the time for filing the answer has expired or the person filing the answer has not given notice of intention to defend. (3) A reference in these Rules to a person who has given notice of intention to defend includes a reference to a person who has filed an answer without giving notice of intention to defend. Filing of reply, etc. 15. (1) A petitioner may file a reply to an answer within 14 days after he or she has received a copy of the answer pursuant to rule 19. (2) If the petitioner does not file a reply to an answer, he or she is, unless the answer prays for a decree, deemed, on making a request for directions for trial, to have denied every material allegation of fact made in the answer. (3) No pleading subsequent to a reply may be filed without leave. Filing of pleading after directions for trial 16. No pleading may be filed without leave after directions for trial have been given. Contents of answer and subsequent pleadings 17. (1) If an answer, reply or subsequent pleading contains more than a simple denial of the facts stated in the petition, answer or reply, as the case may be, the pleading must set out with sufficient particularity the facts relied on, but not the evidence by which they are to be proved. (2) Unless otherwise directed, an answer by a husband or wife who disputes any statement required to be included in the petition must contain full particulars of the facts relied on. 19 (3) So much of Form 2 as requires the petition to conclude with a prayer giving details of the relief claimed applies, as appropriate and with necessary modifications, to a respondent spouse’s answer as it applies to a petition, except that it is not necessary to include in the answer any claim for costs against the petitioner. (4) Rule 9 applies with necessary modifications to a pleading other than a petition as it applies to a petition. (5) Rule 7 applies with necessary modifications to a pleading other than a petition as it applies to a petition. Allegations against third parties in pleading 18. (1) Rules 9 and 10 apply with necessary modifications to a husband’s or wife’s pleading other than a petition as they apply to a petition, so however that for the references in those rules to a co-respondent or respondent there are to be substituted references to a party cited. (2) Rule 14 applies with the necessary modifications to a party cited in a pleading as it applies to a respondent or co-respondent to a petition. Service of pleading 19. A party who files an answer, reply or subsequent pleading must at the same time file a copy for service on every opposite party and thereupon the Registrar must annex to every copy for service on a party cited in the pleading a notice in Form 3 with Form 4 attached and send a copy to every other opposite party. Supplemental answer and amendment of pleadings 20. Rules 12 and 13 apply with necessary modifications to the filing of a supplemental answer, and the amendment of a pleading or other document not being a petition, as they apply to the filing of a supplemental petition and the amendment of a petition. Particulars of case 21. (1) A party on whom a pleading has been served may in writing request the party whose pleading it is to give particulars of any allegation or other matter pleaded and, if the party fails to give the particulars within a reasonable time, the party requiring them may apply for an order that the particulars be given. (2) The request or order in pursuance of which particulars are given must be incorporated with the particulars, each item of the particulars following immediately after the corresponding item of the request or order. (3) A party giving particulars, whether in pursuance of an order or otherwise, must at the same time file a copy of them. 20 Preparations for Trial Discovery of documents, etc. in defended cause 22. The provisions of Order 15 rules 2, 3, 4, 5, 6, 7 and 8 of the Civil Procedure Rules apply to a defended cause begun by petition as they apply to an action, subject to necessary modifications and adaptations. Discovery by interrogations in undefended cause 23. The provisions of Order 15, rule 1 of the Civil Procedure Rules relating to the procedure for the delivery of interrogatories apply to a defended cause begun by petition, subject to necessary modifications and adaptations. Medical examination in proceedings for nullity 24. Revoked by L.N. 2 of 2018 w.e.f. 5 March 2018 Conduct of medical examination 25. Revoked by L.N. 2 of 2018 w.e.f. 5 March 2018 Directions for trial 26. (1) On the written request of the petitioner or of any party who is defending a cause begun by petition, the Registrar must give directions for the trial of the cause if the Registrar is satisfied— (a) that any application for directions required by rule 9(2) or by that rule as applied by rule 17, has been made; (b) that a copy of the petition (including any supplemental or amended petition) and any subsequent pleading has been duly served on every party required to be served and, if that party is a person under disability, that any document required by rule 54 has been filed; (c) if no notice of intention to defend has been given by any party entitled to give it, that the time limited for giving such notice has expired; (d) if notice of intention to defend has been given by any party, that the time allowed him for filing an answer has expired; (e) if an answer has been filed, that the time allowed for filing any subsequent pleading has expired; (f) in proceedings for nullity— (i) that any application required by rule 24 has been made, and (ii) if an order for the examination of the parties has been made on an application under rule 24, that the notice required by sub-rule (10) of that rule has been served and the report of the inspector or inspectors has been filed. (2) In any other case the Registrar must give directions for trial by setting the cause down for trial and giving notice that he or she has done so to every party to the cause. 21 Evidence Evidence generally to be taken orally 27. Subject to rules 28 and 29 and to the Civil Evidence Act 1968 (UK), and any other applicable enactment, any fact required to be proved by the evidence of witnesses at the trial of a cause begun by petition must be proved by the examination of the witnesses orally and in open court. Evidence by affidavit etc. 28. (1) The court may order that— (a) the affidavit of any witness may be read at the trial on conditions the court thinks reasonable; (b) the evidence of any particular fact must be given at the trial in a manner specified in the order, and in particular— (i) by statement on oath of information or belief; or (ii) by the production of documents or entries in books. (2) An application to the Registrar for an order under sub-rule (1) must if— (a) no notice of intention to defend has been given; or (b) the petitioner and every party who has given notice of intention to defend consents to the order sought, be made ex parte by filing an affidavit stating the grounds on which the application is made. (3) In a case where an application is made before the trial for an order that the affidavit of a witness may be read at the trial or that evidence of a particular fact may be given at the trial by affidavit - (a) the proposed affidavit or a draft of it must be submitted with the application; and (b) if the affidavit is sworn before the hearing of the application and sufficiently states the grounds on which the application is made, no other affidavit is required under sub-rule (2). (4) The court may, on the application of any party to a cause begun by petition, make an order under Order 27, rule 1, of the Civil Procedure Rules (which regulates the procedure when evidence is to be taken by commission) for the examination on oath of any person, and that rule is to have effect accordingly with appropriate modifications. Evidence of marriage outside St Helena 29. The celebration of a marriage outside St Helena and its validity under the law of the country where it is celebrated may, in any matrimonial proceedings in which the existence and validity of the marriage is not disputed, be proved by the evidence of one of the parties to the marriage and the production of a document purporting to be— (a) a marriage certificate or similar document issued under the law in force in that country; or (b) a certified copy of an entry in a register of marriages kept under the law in force in that country. 22 Saving for judge’s powers 30. Nothing in rule 28 or 29 affects the power of the judge at the trial to refuse to admit any evidence if in the interests of justice he or she thinks fit to do so. Trial, etc. Mode of trial 31. Unless otherwise directed, every cause under the Ordinance and any issue arising in it must be tried by a judge without a jury. Right to be heard on ancillary questions 32. (1) A respondent spouse may, without filing an answer, be heard on any question of custody of, or access to, any child of the family. (2) A respondent, co-respondent or party cited may, without filing an answer, be heard on any question as to costs, but no allegation is to be made against a party claiming costs unless the party making the allegation has filed an answer. (3) A party is entitled to be heard on any question pursuant to sub-rule (1) or (2) whether or not the party has returned to the Registry an acknowledgement of service stating his or her wish to be heard on that question. (4) In proceedings after a decree nisi of divorce or a decree of judicial separation, no order the effect of which would be to make a co-respondent or party cited liable for costs which are not directly referable to the decree may be made unless the co-respondent or party cited is a party to the proceedings or has been given notice of the intention to apply for such an order. Decrees and Orders Decrees and orders 33. Every decree, every order made in open court and every other order which is required to be drawn up must be drawn up by the Registrar. Copies of decrees and orders 34. (1) A copy of every decree must be sent by the Registrar to every party to the cause. (2) A sealed or other copy of a decree or order made in open court must be issued to any person requiring it on payment of the prescribed fee. Service of order 35. (1) If an order made in matrimonial proceedings has been drawn up, the 23 Registrar must, unless otherwise directed, send a copy of the order to every party affected by it. (2) If a party against whom the order is made is acting by a solicitor, a copy may, if the Registrar thinks fit, be sent to that party as if the party were acting in person, as well as to his or her solicitor.

(3) It is not necessary for the person in whose favour the order was made to prove that a copy of the order has reached any other party to whom it is required to be sent. (4) This rule does not affect any other rule or enactment for the purpose of which an order is required to be served in a particular way. Service of decree or order requiring act to be done 36. If a decree or order requires a person to do or abstain from doing an act, service on that person may be made on the person personally or delivered to his or her solicitor. Intervention by any person to show cause 37. (1) A person who wishes to show cause under section 16(2) of the Ordinance against a decree nisi being made absolute must file an affidavit stating the facts on which he or she relies and a copy must be served - (a) on the party in whose favour the decree was pronounced; and (b) (in the case of a decree of nullity) if the affidavit alleges collusion, on the other party or parties to the alleged collusion. (2) A party on whom a copy of an affidavit has been served under sub-rule (1) may, within 14 days after service, file an affidavit in answer and, if the party does so, a copy of it must be served on the person showing cause. (3) The person showing cause may file an affidavit in reply within 14 days after service of the affidavit in answer and, if the person does so, a copy must be served on each party who was served with a copy of the person’s original affidavit. (4) An affidavit after an affidavit in reply may not be filed without leave. (5) A person who files an affidavit under sub-rule (1), (2) or (3) must at the same time file a copy for service on each person required to be served with the affidavit and the Registrar must thereupon serve the copy on that person. (6) A person showing cause must apply to the judge for directions within 14 days after expiry of the time allowed for filing an affidavit in reply or, if no affidavit in answer has been filed, within 14 days after expiry of the time allowed for filing such an affidavit. (7) If the person showing cause does not apply under sub-rule (6) within the time limited, the person in whose favour the decree was pronounced may do so. 24 Rescission of decree nisi by consent 38. (1) If, after a decree nisi has been pronounced but before it has been made absolute, a reconciliation has been effected between the petitioner and the respondent spouse, either party may apply for an order rescinding the decree by consent. (2) A copy of the summons by which the application is made must be served on the other spouse and on any other person against whom costs have been awarded or who is otherwise affected by the decree. Decree absolute 39. (1) Subject to sub-rule (3), an application by a spouse to make absolute a decree nisi may be made after the expiration of 3 months from the making of the decree nisi by lodging with the Registrar a notice in Form 5. (2) On the lodging of such a notice, the Registrar must search the court minutes and if the Registrar is satisfied that— (a) no appeal against the decree and no application for re-hearing of the cause or for rescission of the decree is pending; (b) no order has been made by the Court of Appeal of St Helena extending the time for appealing against the decree, or by a judge extending the time for making an application for re-hearing of the cause or, if any such order has been made, the time so extended has expired; (c) no application for such an order as is mentioned in paragraph (b) is pending; (d) no intervention under rule 37 is pending, the Registrar must make the decree absolute. (2A) If a notice under sub-rule (1) is lodged more than 12 months after the decree nisi, the Registrar must require the applicant to file an affidavit accounting for the delay and must refer the application to the Chief Justice. (3) If there are circumstances which ought to be brought to the notice of the court before a decree nisi is made absolute, an application for the decree to be made absolute must be made to the Chief Justice. (3A) Unless otherwise directed, the summons by which an application under sub-rule (3) is made must be served on every party to the cause and on any other person with whom adultery is alleged, and the application must be heard in open court. (4) An order granting an application under sub-rule (3) does not take effect until the Registrar has searched the court minutes and is satisfied as to the matters mentioned in sub-rule (2). (5) If a decree nisi is made absolute, the Registrar must make an endorsement to that effect on the decree, stating the precise time at which it was made absolute. 25 Certificate of decree absolute 40. (1) On a decree nisi being made absolute, the Registrar must send to the petitioner and the respondent spouse a certificate in Form 6 or 7, whichever is appropriate, authenticated by the seal of the Supreme Court. (2) A certificate in Form 6 or 7 that a decree nisi has been made absolute must be issued to any person requiring it on payment of the prescribed fee. Rescission of decree of judicial separation 41. (1) A petition for the rescission of a decree of judicial separation must set out particulars of the decree and the grounds for rescission relied on by the petitioner. (2) The party in whose favour the decree was pronounced may file an answer within 14 days after service of a copy of the petition on him or her. (3) Except as provided in sub-rule (2), all proceedings on the petition must be carried on in the same manner, so far as practicable, as proceedings on a petition for judicial separation. Ancillary Relief Application by petitioner or respondent for ancillary relief 42. (1) Any application by a petitioner, or by a respondent spouse who files an answer claiming relief, for— (a) an order for maintenance pending suit; (b) a secured annual payments order; (c) a lump sum order, must be made in the petition or answer, as the case may be. (2) Despite sub-rule (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently— (a) by leave of the court, either by notice in Form 8 or at the trial; or (b) if the parties are agreed upon the terms of the proposed order, - without leave by notice in Form 8. (3) An application by a petitioner or respondent spouse for ancillary relief, not being an application which is required to be made in the petition or answer, must be made by notice in Form 8. Application for maintenance of children 43. Any person in whose care a child of the family is and who has obtained leave to intervene in the cause for the purpose of applying for maintenance for that child may apply for an order for ancillary relief as respects that child by notice in Form 8. 26 Application in Form 8 44. If an application for ancillary relief is made by notice in Form 8 the applicant must serve a copy of the notice on the respondent to the application. General provisions as to evidence, etc, on application for ancillary relief 45. (1) If a respondent spouse or a petitioner is served with a notice in Form 8 or 9 in respect of an application for ancillary relief, then unless the parties are agreed upon the terms of the proposed order - (a) he or she must, within 14 days after service of the notice, file an affidavit in answer to the application, containing full particulars of his or her property and income; and (b) if he or she does not do so, the court may order him or her to file an affidavit containing such particulars. (2) An affidavit in reply may be filed within 14 days after service of any affidavit under sub-rule (1) or within such other time the court fixes. Evidence on application to discharge, etc., order for maintenance 46. (1) An application to the court to discharge or modify or temporarily suspend an order for maintenance must be supported by an affidavit by the applicant setting out full particulars of his or her property and income and the grounds on which the application is made. (2) The respondent to the application may within 14 days after service of the affidavit file an affidavit in answer. Service of affidavit, or answer, or reply 47. (1) A person who files an affidavit for use on an application under rules 45 and 46 must at the same time serve a copy on the opposite party and, if the affidavit contains an allegation of adultery or of an improper association with a named person, then unless otherwise directed - (a) the affidavit must be endorsed with a notice in Form 11; (b) a copy of the affidavit or of any part of it the court directs, similarly endorsed, must be served on that person by the person who files the affidavit; and (c) the person against whom the allegation is made is entitled to intervene in the proceedings by applying for directions under rule 48(5) within 8 days of service of the affidavit on him or her, inclusive of the day of service. (2) Rule 32(4) applies to a person served with an affidavit under sub-rule (1) as it applies to a co-respondent. Investigation by Registrar of application for ancillary relief 48. (1) On or after the filing of a notice in Form 8 or 9 a date must be fixed for the hearing of the application by the court. 27 (2) Notice of the date of hearing, unless given in Form 8 or 9, as the case may be, must be given by the Registrar to every party to the application. (3) Any party to an application for ancillary relief may by letter require any other party to - (a) give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter; (b) provide a list of relevant documents; or (c) allow inspection of any such document, and may, in default of compliance by the other party, apply to the Registrar for directions. (4) At the hearing of an application for ancillary relief the court - (a) must investigate the allegations made in support of and in answer to the application; (b) may take evidence orally; (c) may order the attendance of any person for the purpose of being examined or cross- examined; and (d) may at any stage of the proceedings order the discovery and production of any document or require further affidavits. (5) The court may at any stage of the proceedings give directions as to the filing and service of pleadings and as to the further conduct of the proceedings. Hearing of applications 49. The hearing of an application for ancillary relief and any question arising thereon must take place in Chambers unless the Chief Justice otherwise directs. Request for periodical payments order at same rate as order for maintenance pending suit 50. (1) If at or after the date of a decree nisi of divorce or nullity of marriage an order for maintenance pending suit is in force, the party in whose favour the order was made may, if he or she has made an application for an order for periodical payments for himself or herself in the petition or answer, as the case may be, request the court in writing to make such an order (in this rule referred to as a “corresponding order”) providing for payments at the same rate as those provided for by the order for maintenance pending suit. (2) If such a request is made, the court must serve on the other spouse a notice in Form 10 requiring him or her, if he or she objects to the making of a corresponding order, to give notice to that effect to the court and to the applicant within 14 days after service of the notice in Form 10. (3) If the other spouse does not give notice of objection within the time aforesaid, the court - (a) may make a corresponding order without further notice to that spouse and without requiring the attendance of the applicant or his or her solicitor; and (b) must in that case serve a copy of the order on the applicant as well as on the other spouse. 28 Applications Relating to Children Custody, care and supervision of children 51. The petitioner or the respondent or any person who has obtained leave to intervene in the suit for the purpose of applying for custody, or who has the custody or control of any children of the family, may after entering an appearance for such purpose apply to the court after a final decree of judicial separation, nullity of marriage or divorce for - (a) an order relating to the custody, maintenance and education of such children; or (b) directions for placing such children under the protection of the court. Access to children 52. A petitioner may at any time after filing a petition and a respondent may at any time after entering an appearance apply to the court for access to any children of the family. Removal of child out of St Helena 53. (1) An application for leave to remove a child permanently out of St Helena may be made to the court. (2) A petitioner may at any time after filing a petition apply ex parte to the Supreme Court for an injunction restraining the respondent or any other person from removing any child of the family under 18 years of age out of St Helena or out of the custody, care or control of any person named in the application. Disability Person under disability must sue by next friend, etc. 54. (1) In this rule— “patient” means a patient as defined in the Mental Health and Mental Capacity Ordinance, 2015; “person under disability” means a person who is a minor or a patient. (2) A person under disability may begin and prosecute any matrimonial proceedings by his or her next friend and may defend any such proceedings by his or her guardian ad litem and, except as otherwise provided by this rule, it is not necessary for a guardian ad litem to be appointed by the court. (3) No notice of intention to defend is to be given, or answer or affidavit in answer filed by or on behalf of a person under disability, unless the person giving the notice or filing the answer or affidavit has filed the following documents— (a) written consent to act as next friend or guardian ad litem; (b) a certificate under the person’s hand certifying that he or she knows or believes that the person to whom the certificate relates is a minor or patient, stating (in the case of a patient) the grounds of his or her knowledge or belief. 29 Service on person under disability 55.2 (1) If a document to which rule 10 applied is to be served on a person under disability it must be served— (a) in the case of a minor who is not also a patient - on his or her parent or guardian, or if the minor has no parent or guardian, the person with whom he or she resides or in whose care he or she is; (b) in the case of a patient - on the person with whom the patient resides or in whose care he or she is. (2) The court may order that a document which has been or is to be served on a person under disability or on a person other than one mentioned in paragraph (a) or (b) is deemed to be duly served on the person under disability. Petition for nullity on ground of insanity, etc 56. (1) If a petition for nullity of marriage has been presented on the ground that the respondent at the time of the marriage was of unsound mind, then whether or not the respondent gives notice of intention to defend, the petitioner may not proceed with the cause without the leave of the Registrar. (2) The Registrar by whom an application for leave is heard may make it a condition of granting leave that some proper person be appointed to act as guardian ad litem of the respondent. Separate representation of children 57. (1) If in any matrimonial proceedings it appears to the court that any child ought to be separately represented, the court may appoint any proper person to be guardian ad litem of the child with authority to take part in the proceedings on the child’s behalf. (2) The applicant for an order under sub-rule (1) must on making the application file a certificate under his or her hand certifying that he or she has no interest in the proceedings adverse to that of the child. SCHEDULE (Rule 2) FORMS Form 1: Notice of application under section 3 Form 2: Contents of Petition Form 3: Notice of proceedings Form 4: Acknowledgment of service Form 5: Notice of application for decree nisi to be made absolute Form 6: Certificate of making decree nisi absolute (Divorce) Form 7: Certificate of making decree nisi absolute (Nullity) 2 Rule 55 amended by L.N. 2/2018 30 Form 8: Notice of application for ancillary relief Form 9: Notice of intention to proceed with application for ancillary relief made in Petition or Answer Form 10: Notice of request for periodical payments order at same rate as order for maintenance pending suit Form 11: Notice of allegation in proceedings for ancillary relief FORM 1 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF APPLICATION UNDER SECTION 3 (Rule 4(3)) (SEAL) In the Supreme Court of St Helena No. … of 20 …. (Divorce) In the Matter of a proposed Petition for dissolution of marriage: Between ………………………………………. Applicant and ………………………………………... Respondent. TAKE NOTICE that an application has been made by the above-named Applicant for leave to present a Petition for dissolution of his/her marriage with you before the expiration of the period of 3 years from the date of the said marriage. If the application is undefended, it will be heard at the Supreme Court on the ………… day of ………………………, 20…… , at ………a.m./p.m. and if you do not attend at that time and place, such order will be made as the court thinks just. A sealed copy of the application and of the affidavit to be used in support of the application is delivered with this notice. You must complete and detach the acknowledgment of service and send it so as to reach the court within 8 days after you receive this notice, inclusive of the day of receipt. Delay in returning the form may add to the costs. If you intend to instruct a solicitor to act for you, you should at once give him or her all the documents which have been served on you, so that he or she may send the acknowledgment to the Court on your behalf. Dated this ………… day of …………………………., 20…… . Registrar To the Respondent………………………. ___________ 31 FORM 23 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 CONTENTS OF PETITION (Rule 6(2)) (Unless otherwise directed under Rule 6; and see Rule 6 for specific requirements in certain cases). 1. Every petition must state— (a) the names of the parties to the marriage and the date and place of the marriage; (b) the last address at which the parties to the marriage have lived together as spouses; (c) if it is alleged that the court has jurisdiction based on domicile— (i) the country in which the petitioner is domiciled; and (ii) if that country is not St Helena, the country in which the respondent is domiciled; (d) ifit is alleged that the court has jurisdiction based on residence— (i) the country in which the petitioner has been resident throughout the period of three years ending with the date of the presentation of the petition; or (ii) if the petitioner has not been ordinarily resident in St Helena, the country in which the respondent has been ordinarily resident during that period, with details in either case, including the addresses of the places of residence and the length of residence at each place; (e) the occupation and residence of the petitioner and the respondent; (f) whether there are any living children of the family and, if so— (i) the number of such children and full names (including surname) of each and his or her date of birth or (if it be the case) that he or she is over 18; and (ii) in the case of each minor child over the age of 16, whether he or she is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation; (g) whether any other living child has been born to either party during the marriage and, if so, the full names (including surname) of the child and his or her date of birth or, if it be the case, that he or she is over 18; (h) if it be the case, that there is a dispute whether a living child is a child of the family; (i) whether or not there are or have been any other proceedings in any court in St Helena or elsewhere with reference to the marriage or to any children of the family or between the petitioner and the respondent with reference to any property of either or both of them and, if so— (i) the nature of the proceedings; (ii) the date and effect of any decree or order; and (iii) in the case of proceedings with reference to the marriage, whether there has been any resumption of cohabitation since the making of the decree or order; (j) whether there are any proceedings continuing in any country outside St Helena which 3 Form 2 amended by L.N. 2/2018 32 relate to the marriage or are capable of affecting its validity or subsistence and, if so— (i) particulars of the proceedings, including the court in or tribunal or authority before which they were begun; (ii) the date when they were begun; (iii) the names of the parties; (iv) the date or expected date of any trial in the proceedings; and (v) such other facts as may be relevant to the question, and such proceedings include any which are not instituted in a court of law in that country, if they are instituted before a tribunal or other authority having power under the law having effect there to determine questions of status, and are to be treated as continuing if they have been begun and have not been finally disposed of; (k) whether any, and if so what, agreement or arrangement has been made or is proposed to be made between the parties for the support of the respondent or, as the case may be, the petitioner or any child of the family; (l) in the case of a petition for divorce, that the marriage has broken down irretrievably; (m) the facts alleged by the petitioner for the purpose of section 5(1) of the Ordinance or, if the petition is not for divorce or judicial separation, the ground on which relief is sought, together in any case with brief particulars of the individual facts relied on but not the evidence by which they are to be proved; (n) any further or other information required by any of the following paragraphs that are applicable. 2. A petition for a decree of nullity under section 14 of the Ordinance must state whether the petitioner was at the time of the marriage ignorant of the facts alleged. 3. A petition for a decree of presumption of death and dissolution of marriage must state— (a) the last place at which the parties to the marriage cohabited; (b) the circumstances in which the parties ceased to cohabit; (c) the date when and the place where the respondent was last seen or heard of; and (d) the steps which have been taken to trace the respondent. 4. A petition for jactitation of marriage must state— (a) the residence and domicile of the petitioner and the respondent at the date of the institution of the cause; (b) the dates, times and places of the alleged boastings and assertions; (c) that the alleged boastings and assertions are false and that the petitioner has not acquiesced in them. 5. Every petition must conclude with— (a) a prayer setting out particulars of relief claimed, including any claim for custody of a child of the family, any claim for costs and any application for ancillary relief which it is intended to claim; (b) the names and addresses of the persons who are to be served with the petition, indicating if any of them is a person under disability; (c) the petitioner’s address for service, which, if the petitioner sues by a solicitor, must be the solicitor’s name or firm and address, or, if the petitioner sues in person, must be his or her place of residence as given under paragraph 1(e) or, if no place of residence in St Helena is given, the address of a place in St Helena 33 at or to which documents for the petitioner may be delivered or sent. ___________ FORM 3 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF PROCEEDINGS (Rule 19) In the Supreme Court of St Helena, No … of 20….…(Divorce) Between ………….…….….….…….…….…….. Petitioner and …………….…….……….….…….……... Respondent and …….…….…….…….…..……….……. Co-respondent. To: TAKE NOTICE that a Petition for divorce has been presented to the Supreme Court of St Helena by ……………………...…………… . A copy of it is delivered with this Notice. You must complete the accompanying Form of Acknowledgment of Service and send it to ……………………………….. (the Solicitor for) the Petitioner, at (address) ……………………………………. . If you do not intend to answer the charges, nor to be heard on the other claims made in the Petition, and if you do not wish to make any application on your own account, you need not do anything more than send the Form of Acknowledgment of Service to the above address. The court may then, without further notice to you, proceed to hear the Petition and pronounce judgment, notwithstanding your absence. If you wish to be heard on any matter in connection with the Petition you (or your solicitor) must complete the accompanying Memorandum of Appearance in duplicate and send or deliver both copies (without fee) so as to reach this Registry within 8 days after you receive this Notice. You (or your solicitor) will receive notice of the case being set down for hearing. When the case is heard, you must attend the hearing. If you wish to defend the case at the hearing, you (or your solicitor) must, in addition to sending the Memorandum of Appearance, send or deliver an Answer in writing together with the prescribed fee so as to reach this Registry within 14 days after the time allowed for sending the Memorandum of Appearance. You (or your solicitor) must at the same time send a copy of your Answer to (the solicitor for) the Petitioner. If you wish to claim custody of the children, you (or your solicitor) must, in addition to completing the Memorandum of Appearance, either— (i) include in your answer a statement of your own proposals for their support, care and upbringing; or (ii) if you do not intend to file an answer, include such a statement in the Memorandum of Appearance. If you fail to do this, you will have to obtain leave to apply for custody. If you wish to oppose the claim for maintenance or other financial relief, you (or your solicitor) 34 must, in addition to sending the Memorandum of Appearance, also send or deliver, so as to reach this Registry within 14 days after the expiry of the time allowed for sending the Memorandum of Appearance, an affidavit (which must be sworn before a Justice of the Peace in St Helena, or a Commissioner for Oaths or similar officer elsewhere) giving full particulars of your property and income, together with the prescribed fee You (or your solicitor) must at the same time send a copy of your affidavit to (the solicitor for) the Petitioner. 6. If you wish to allege that your spouse has property or income you should say so in your affidavit. Note: If you intend to instruct a solicitor to act for you in these proceedings, you should at once complete and sign the Form of Acknowledgment of Service and then give him or her all the documents which have been served upon you, so that he or she may take the necessary steps on your behalf within the times specified. Dated the ………… day of …………………………., 20…… . Registrar Notes: Delete words if not applicable. “Solicitor” includes a person advocating the cause of another with the consent of the Chief Justice. If this form is used, both copies must be completed and sent to the Registry. ___________ FORM 4 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 ACKNOWLEDGMENT OF SERVICE (Rules 4(3), 10(5), 11(1) and 19) In the Supreme Court of St Helena No ……… of 20….… (Divorce) Between ..…….………….………….…………. Petitioner and ………….………….…………..………. Respondent and ………………….………….………. Co-respondent I am the person named as ……………………………………… in the Petition (2) I received on the ……………………. day of ……………..……………, 20……, at (place of receipt) ……………………………………………………… . (a) A copy of the Petition filed in this case. (b) Notice of Petition/Proceedings. 1. Do you intend to defend the case at the hearing? (Answer “Yes” or “No”). 35 2. Even if you do not wish to defend the case, do you wish to be heard as to other claims made in the Petition namely: (1) Costs (2) Access to the children. (3) Custody of the children. (4) Maintenance of the children. (5) Maintenance (6) A secured provision. (Answer “Yes” or “No” against each item) 3. Do you wish to make any application on your own account for: (1) Costs (2) Access to the children. (3) Custody of the children. (4) Maintenance of the children. (5) Maintenance (6) A secured provision. Notes: (a) If you intend to file an Answer claiming any relief on your own account, you must include in it any claim you may wish to make for maintenance of the children or maintenance for yourself. (b) If you wish to claim custody of any child, you must comply with the instructions in the accompanying Notice of Petition. (c) If you wish (either in opposing any of the claims under A or in supporting any claim you may make under B) to make against the petitioner any charge which may be a defence to the petition, you must, even if you do not wish to defend the petition, file an Answer and support it at the hearing. 4. What are your proposals for the support, care and upbringing of the children? (Here set out full particulars of your proposals unless you intend to include them in your Answer or do not wish to claim custody). 5. What is your address to which communications should be sent? 6. (In the case of a petition alleging one years’ separation coupled with the respondent’s consent to a decree being granted) Do you consent to a decree being granted? 7. (In the case of a petition asking for divorce and alleging five years’ separation) Do you intend to oppose the grant of a decree on the ground that the divorce will result in grave financial or other hardship to you and that in all the circumstances it would be wrong to dissolve the marriage? 8. (In the event of a decree nisi being granted on the basis of one years’ separation coupled with the respondent’s consent, or 5 years’ separation) Do you intend to apply to the Court for it to consider your financial position as it will be after the divorce? Dated the ………… day of …………………………., 20…… . 36 Signed Respondent ___________ FORM 5 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF APPLICATION FOR DECREE NISI TO BE MADE ABSOLUTE (Rule 39(1)) In the Supreme Court of St Helena, No ……… of 20…. (Divorce). Between ………………….………. Petitioner and ………………….………………Respondent and ………………….………….. Co-respondent. TAKE NOTICE that the Petitioner (or Respondent) applies for the decree nisi pronounced in his/her favour on the …………… day of ………………………, 20……, to be made absolute. Dated this ………… day of …………………………., 20…… . Signed …………………………………... (Solicitor for the) Petitioner or Respondent ___________ FORM 6 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 CERTIFICATE OF MAKING DECREE NISI ABSOLUTE (DIVORCE) (Rule 40(1)) (SEAL) In the Supreme Court of St Helena, No ……… of 20…. (Divorce). Between ……………..……..…………Petitioner and ……………..……..……………. Respondent and ……………..……..……….……Co-respondent. Referring to the decree made in this cause on the ………… day of …………… 20……, whereby it was decreed that the marriage solemnised on the ……….. day of ………………, 20…… at ……………………… between ……………………. the Petitioner and ………………………… the Respondent be dissolved unless sufficient cause be shown to the court within ……………………………… from the making of it why the said decree 37 should not be made absolute, and no such cause having been shown, it is hereby certified that the said decree was on the ………… day of ……………………, 20……, made final and absolute and that the said marriage was thereby dissolved. Dated this ………… day of …………………………., 20…… . ___________ FORM 7 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 CERTIFICATE OF MAKING DECREE NISI ABSOLUTE (NULLITY) (Rule 40(1)) (SEAL) In the Supreme Court of St Helena, No ……… of 20…. (Divorce) Between ……………..……..…………. Petitioner and ……………....……………..….. Respondent and .……………..……………..……Co-respondent. Referring to the decree made in this cause on the ............ day of ......................., 20……, whereby it was ordered that the marriage in fact solemnised on the ........... day of .......…................, 20……, at ...................……...... between …....................... the Petitioner and ....................……....... the Respondent be pronounced and declared to have been by law void and the said Petitioner ................……….......... to be pronounced to have been and to be free of all bond of marriage with the said Respondent ...............……………......... unless sufficient cause be shown to the court within .....…................... from the making of it why the said decree should not be made absolute, and no such cause having been shown, it is hereby certified that the said decree was on the ................ day of .…........................, 20…… made final and absolute and that the said marriage was by law void and that the said petitioner was and is free from all bond of marriage with the said respondent. Dated this ………… day of …………………………., 20…… . ___________ FORM 8 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF APPLICATION FOR ANCILLARY RELIEF (Rules 42 to 45 and 48) In the Supreme Court of St Helena No ……… of 20…. (Divorce). Between ……………..……..……………. Petitioner 38 and ……………..……..…………...…. Respondent and ……………..…..…………..…… Co-respondent. TAKE NOTICE that the Petitioner (or Respondent) intends to apply to the court for (here set out the ancillary relief) Notice will be given to you of the place and time fixed for the hearing of the application (or the application will be heard by the Registrar in chambers at ..………………………………..……….. on ………….. day, the ………….. day of …………………..………, 20……, at …………a.m./p.m. Unless the parties are agreed upon the terms of the proposed order, add in the case of an application for an order for maintenance pending suit, periodical payments or a lump sum: TAKE NOTICE ALSO that you must send to the Registrar, so as to reach him or her 14 days after you receive this notice; an affidavit giving full particulars of your property and income You must at the same time send a copy of your affidavit to the (solicitor for) the applicant. (If you wish to allege that the petitioner has property or income, you should say so in your affidavit.) Dated this ………… day of …………………………., 20…… Signed (Solicitor for the) Petitioner/Respondent . ___________ FORM 9 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF INTENTION TO PROCEED WITH APPLICATION FOR ANCILLARY RELIEF MADE IN PETITION OR ANSWER (Rule 48) In the Supreme Court St Helena, No ……… of 20….… (Divorce). Between …………….…………….…..Petitioner and ……………..………………...…Respondent and .…………..……………..………Co-respondent. The Petitioner (or Respondent) having applied in his/her Petition (or Answer) for (here set out the ancillary relief claimed, stating the terms of any agreement as to the order which the court is to be asked to make). TAKE NOTICE that the application will be heard by the Registrar in chambers at ………………………….……… on ……………… day, the ……… day of ………………….., 20…..…, at ………a.m./p.m. 39 Unless the parties are agreed upon the terms of the proposed order, add in the case of an application for an order for maintenance pending suit, periodical payments or a lump sum: TAKE NOTICE ALSO that you must send to the Registrar, so as to reach him or her within 14 days after you receive this notice, an affidavit giving full particulars of your property and income. You must at the same time send a copy of your affidavit to the (solicitor for) the applicant. (If you wish to allege that the Petitioner has property or income, you should say so in your affidavit.) Dated this ………… day of …………………………., 20…… . Signed (Solicitor for the) Petitioner/Respondent ___________ FORM 10 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF REQUEST FOR PERIODICAL PAYMENTS ORDER AT SAME RATE AS ORDER FOR MAINTENANCE PENDING SUIT (Rule 50) In the Supreme Court St Helena, No ……… of 20…. (Divorce). Between ……………..……..…………. Petitioner and ……………..….……..………… Respondent and ………………..…..………. Co-respondent. To ………………….………………. of…………………………………………….. The Petitioner (or Respondent) having on the ……… day of …………………., 20……, obtained an order for payment by you of maintenance pending suit at the rate of …………………….…. . AND the Petitioner (or Respondent) having applied in his/her Petition (or Answer) for a periodical payments order for himself (or herself). TAKE NOTICE that the Petitioner (or Respondent) has requested the court to make a periodical payments order for himself/herself providing for payments by you at the same rate as those mentioned above. AND TAKE NOTICE that if you object to the making of such a periodical payments order, you must give notice to that effect to the Registrar and the Petitioner (or Respondent) within 14 days after service of this notice on you, and if you do not do so, the Registrar may make such a periodical payments order without further notice to you. 40 Dated this ………… day of …………………………., 20…… . Signed (Solicitor for the) Petitioner/Respondent ___________ FORM 11 MATRIMONIAL CAUSES ORDINANCE, 1961 MATRIMONIAL CAUSES RULES, 1973 NOTICE OF ALLEGATION IN PROCEEDINGS FOR ANCILLARY RELIEF (Rule 47(1)) In the Supreme Court St Helena, No ……… of 20….… (Divorce). Between ……………..………………………. Petitioner and ……………..……………..………….. Respondent and ……………..……..……………..…. Co-respondent. TAKE NOTICE that this affidavit has been filed in proceedings for (state nature of application) and that if you wish to be heard on any matter affecting you in the proceedings you may intervene by applying to the court, within 8 days after you receive this notice, inclusive of the day of receipt, for directions as to the filing and service of pleadings and as to the further conduct of the proceedings. Dated this ………… day of …………………………., 20…… . Issued by ........................….. (Solicitor for the) Petitioner (or Respondent) ___________