Divorce is a sensitive issue which not only creates heartbreak for the couple, but for the children whose lives are set to turn upside down.
Internal Affairs secretary Bredina Drollet says that if passed, the Family Law Bill will modernise the laws around separation and divorce in the Cook Islands by encouraging spouses and partners who agree to separate to negotiate and agree how it will affect children, including the determination of their residence, care and contact arrangements.
The Bill also provides new legal remedies relating to property, domestic and child support.
Currently, laws around separation and divorce in the Cook Islands are spread across a number of different legislation including the Cook Islands Act 1915, the Cook Islands Amendment Act 1994.
Divorce procedures in the Cook Islands are based on fault, which means proving a matrimonial offence as the cause of the breakup, such as desertion, adultery or cruelty.
Drollet says that unfortunately, fault-based divorce often exacerbates hostility and bitterness between ex-partners and this is often not in the best interests of any children.
“It can also make it difficult for women to leave violent relationships since the requirement to provide evidence of a specific matrimonial crime may force them to provide evidence of situations that are humiliating, embarrassing or frightening.”
Separation procedures in the Cook Islands are not fault-based.
Instead, the parties can obtain a separation order if “there is a state of disharmony between the parties to the marriage,” says Drollet.
The primary legal effect of the separation order is that the parties no longer have to live together, but this does not necessarily however resolve or determine the new relations between the parties particularly if they have children.
Where a married couple has divorced, there are legal remedies through the Courts relating to division of property, spousal and child support, occupation orders, and determining residence and contact arrangements for any children.
But there is limited legislative guidance provided to the Courts to guide their decision-making, says Drollet.
“Enforcement can be an issue and there is often contempt of court where one parent fails to meet Court Orders for example by failing to pay child support, leaving the country or by removing a child from the Cook Islands.”
The Family Law Bill will modernise divorce laws through the introduction of a no-fault divorce procedure that will enable immediate termination of the marriage if both parties agree to divorce and provided that there are no children of the marriage.
If there are children, or if only one party wishes to end the marriage, the court will require a separation period of 12 months first.
The 12 month separation period allows the couple to make arrangements for residence in the matrimonial home, any domestic or child support and to agree on the best interests of any children of the marriage, said Drollet.
The bill also introduces a number of new orders that can be issued by the court where married and de-facto couples separate.
New Domestic Support Orders will enable the court to direct one spouse or partner to pay domestic support to the other.
The bill outlines the range of factors that the courts can consider including for example the income, earning capacity, property of each spouse or partner or the ability of each spouse or partner to support him or herself and any dependents.
Childbearing Expenses Orders will enable the court, where an expectant mother and father have separated, to direct the father of the child to support the mother of the child during pregnancy including meeting of any medical expenses.
Child Support Orders will allow the court to direct that a parent provide child support for the care of that child.
The bill outlines the range factors that the courts can consider including for example the residential and educational needs of the child, said Drollet.
The Courts will be guided by the principle of the best interest of the child, she said.
The Bill also introduces the ability for the Courts to issue Paternity Orders to declare who is the father of child where there is a dispute on who is the father.
“Unless a paternity order is issued, the Family Law Bill presumes the father of a child is the man who is or was married to, or in a de-facto relationship with, the mother at the time of the conception of the child or child’s birth, or if his name is on the child’s birth certificate,” said Drollet.
A presumption of paternity means that it is the onus of the father to disprove that he is the father, she said.
The Bill enables the Courts to request DNA testing if necessary.
Where couples have agreed to separate or divorce, the Bill encourages those parents to agree to a Parenting Plan to clarify who is the person or persons responsible for the care of the child, the process that will be used to resolve any disputes on the operation of the parenting plan and the process that will be used to change anything in the plan.
The parenting plans can be registered in the courts but do not need to be.
If a couple are unable to agree to a parenting plan, the Courts can make a Parenting Order to determine who is the person, or persons, who will be responsible for the care of the child, the times when specified caregivers will care for the child, who can have contact with the child, and the process that will be used to determine any specific questions in the plan.
Under the new law, The courts will have new powers to enable enforcement of the range of support orders including weekly deductions from the wages of the non-compliant parent, direct bank deductions to value of the child support or seizure of goods to the value of the child support.
The Bill will give the courts the ability to issue an Overseas Order which will enable the registration of any support orders made overseas in the Cook Islands Court and give it force as if it had been made in the Cook Islands.
Transmission of a Cook Islands support order to an overseas jurisdiction will also be made possible.
Under the Family Law Bill, it will be an offence to remove a child from the Cook Islands without leave of the court.
The court must take steps to prevent the removal of a child if it is likely to breach a Court Order or defeat the claim of any person that has applied for an order.
The courts will be able to issue a warrant directing police to take immediate custody of the child and place the child with the Ministry of Internal Affairs pending a further court order or order that any tickets or travel documents be surrendered to the police until the court can make a determination on the case.