Many Saint Lucians enjoy dual citizenship or have rights of permanent residence in other states. Similarly, many non-nationals enjoy rights of residency here in Saint Lucia. In those circumstances, if you are thinking of filing for divorce, do you apply here, in Saint Lucia? Or do you apply elsewhere?
A recent high court decision provides helpful guidance.
Who should file for divorce in Saint Lucia
In Saint Lucia, a petition for divorce may be filed by the:
- husband or wife, if both parties (the spouses) are domiciled in Saint Lucia;
- husband or wife, if the husband is domiciled in Saint Lucia;
- wife, if she has been deserted by her husband or if her husband has been deported from Saint Lucia, and immediately before the desertion or deportation, he was domiciled in Saint Lucia;
- wife, if she is resident in Saint Lucia and has been ordinarily resident there for a period of 3 years immediately before filing for divorce and the husband in not domiciled in Saint Lucia.
The domicile of the husband is usually, therefore, the critical consideration in determining whether a divorce petition may be filed in Saint Lucia. The husband’s domicile being the decisive factor follows naturally from the codal principle that a married woman who is not “separated from bed and board” has no other domicile than that of her husband.
The scale is tilted in that:
- a husband who is not domiciled in Saint Lucia has no right to file a petition for divorce there. He must either apply for divorce in the place he is domiciled or change his domicile to Saint Lucia; and
- a wife, whose husband is not domiciled in Saint Lucia, has no option to change her domicile. Instead, she must prove either desertion, or deportation, or that she has been ordinarily resident in Saint Lucia for three years immediately prior to the divorce petition.
The Domicile question
But what does “domicile” mean under the laws of Saint Lucia? This, too, has been clarified by the high court of Saint Lucia.
A person acquires a domicile of origin from the place of his/her birth. However, a person may give up his/her domicile of origin and choose a new domicile as mentioned above. The new domicile is called the domicile of choice. A person cannot have two domiciles or be without a domicile. Therefore, a domicile of origin is not lost until a domicile of choice is acquired.
A domicile of choice is proved by two facts:
- residence in a particular country. This is satisfied by mere personal presence in that country, irrespective of duration. Practically speaking, however, length of intended stay is often a material consideration in qualifying for residency in another state; and
- the intention of making that place one’s principal or permanent place of abode. The motive for the change is irrelevant. While “intention” suggests a subjective state of mind, there must be some objective, outward manifestation of that intention. For example, and to supplement (i) above, the longer the period of residence abroad, the more likely it is to be an outward manifestation of an intention to establish a principal or permanent place of abode in that country.
To wrap up, if both parties are not domiciled in Saint Lucia, the determination of the husband’s domicile is critical to establishing a court’s jurisdiction to hear a petition for divorce in Saint Lucia. A husband’s dual citizenship and rights of temporary or permanent residence, here or abroad, to name a few, will be important considerations in determining his domicile.
Prepared by Sardia Cenac Prospere, Partner
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at info@fdt.law.