Most marriages experience a difficult period sooner or later, during which the sense of connection diminishes. Sometimes differences of opinion turn into arguments that last longer and longer, and at a certain point it becomes impossible to reconnect. In some cases, divorce then seems like a logical consequence.
In Curaçao, strictly speaking, you do not need a lawyer to file a petition for divorce. However, if (serious) disputes arise in connection with a divorce and it proves impossible to reach an agreement together, it may be wise to engage a lawyer or mediator at an early stage in order to prevent further escalation. A divorce may be pronounced at the request of one of the spouses or by joint request of both spouses if the petition is based on the (or their mutual) opinion that the marriage has irretrievably broken down.
In practice, the judge is largely indifferent to the reasons why you decide to divorce, and over the years I have encountered countless reasons in my practice. Nevertheless, my petitions usually state that the marriage has irretrievably broken down. This means that the marriage has entered a state that must be regarded as unbearable for one of the parties. The primary issue is the state of breakdown itself, not the facts and circumstances underlying that breakdown (such as infidelity, financial issues, lack of communication, lack of compatibility, addictions, or the fact that the parties have grown apart and no longer wish to live as a “married couple”).
If your spouse—much to your dismay—largely disputes the irretrievable breakdown of the marriage, the court may still determine that such a state of irretrievable breakdown (on which you rely) does in fact exist, for example because you persist in asserting the breakdown and in pursuing your divorce petition. A serious indication on the basis of which irretrievable breakdown may also be assumed is, for example, a situation in which you have not lived together for a considerable period of time or have had no contact with your spouse. The irretrievable breakdown may also lie, for example, in the mental condition of your spouse.
Despite the fact that an irretrievable breakdown of the marriage has been established, there may be situations in which a divorce cannot in principle be granted, namely where the parties have lived separately for less than three uninterrupted years, one of the parties opposes the divorce, and minor children are involved. This may sound somewhat paternalistic, but through the legal concept of separation from bed and board, the legislator sought to create a certain threshold against hasty divorces where children are involved.
A separation from bed and board lifts the spouses’ obligation to live together. Although neither the law nor its legislative history specifies exactly which interests of minors must be protected, it is clear that those interests must in any event take precedence in divorce proceedings. In practice, however, exceptions always arise. For example, I handled a case in which the irretrievable breakdown of the marriage had been sufficiently established. The parties had, by mutual agreement, arranged a childcare arrangement for their children (co-parenting) that was functioning satisfactorily. They were closely involved in their children’s lives, upbringing, and care. The husband opposed his wife’s divorce petition and instead requested a separation from bed and board.
Ultimately, the court rejected the husband’s defense that a divorce could not be pronounced against his will. Whereas the husband wished to save the marriage, the wife no longer wished to continue the relationship and categorically ruled out any reconciliation. The court held that it had not been shown that the interests of the minor children would be harmed more by a divorce than by a separation from bed and board. This was because the factual situation of the children would remain the same: their parents would no longer live together and would no longer form a family unit. It was up to the parties to support and guide the minors regardless. According to the court, it did not follow from anything that this process would be softened for the children by a separation from bed and board. The minors would also not be aware that their parents were not “truly” divorced in a legal sense, but merely separated from bed and board.
In its decision, the court further considered that insofar as the husband’s interest in being able to save his marriage had to be weighed against the wife’s interest in being able to continue her life freely, the wife’s interest—also a fundamental right—outweighed the husband’s interest. The wife’s petition for divorce was therefore granted despite the husband’s objection.
Do you have questions following the above? If so, you may contact me at
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