The divorce laws in Gibraltar are very similar to those in England. And, while Gibraltar is not a member of the European Union, it has adopted a number of EU regulations to ensure that rules are consistent. So how does divorce work in relation to Gibraltar? How does child custody work after divorce? And how is your property split on divorce? Keep reading for our guide to divorce and Gibraltar.
Divorce laws and grounds for divorce in Gibraltar
The divorce laws in Gibraltar closely mirror those in England. This means that there is only one ground for divorce; namely that your marriage has broken down irretrievably.
You must have been married for at least 2 years before you can divorce in Gibraltar. The exception to this is where you have suffered exceptional hardship or where you were under the age of 16 at the time of marriage.
To show that your marriage has broken down, you must supply evidence of one or more of the following:
- Adultery – that your spouse has committed adultery and you can no longer live with them
- Unreasonable behaviour – that your spouse has behaved in such a way that you can no longer be expected to continue living with them. Unreasonable behaviour may include physical or mental injury to you or your child, unsoundness of mind or mental illness for more than 3 years
- Desertion – for at least 2 years
- Separation – for at least 2 years, and with the consent of the other spouse
- Separation – for a period of 5 years with no consent.
The court will make inquiries into these claims. If they believe that your marriage has broken down irretrievably, and it is satisfied with any arrangements you have made for your child, they will issue a ‘decree nisi’. After 6 weeks you can then apply for the ‘decree absolute’ which finalises your divorce.
Child custody and contact arrangements in Gibraltar after divorce
After divorce in Gibraltar, you can come to an agreement regarding the residence and contact arrangements for your child.
Parental rights are equal in Gibraltar and as a parent you have the right to:
- Control or direct your child’s upbringing
- Have your child live with you
- Maintain relations and regular contact if your child does not live with you
- Act as your child’s legal representative.
If you can’t agree arrangements for your child between you, the court can make an order. The law works in a similar way to that in England, namely that Gibraltar operates a ‘no order’ principle. The court will only make an order if it considers that making an order would be better for your child than making no order at all.
Any order is based on your child’s best interests and factors the court will consider when deciding whether to make an order include:
- Your child’s emotional, educational and physical needs
- The wishes and desires of your child (depending on their age)
- The likely effect of any change to your child’s circumstances
- Your child’s age, gender and background
- Any harm your child is at risk of
- How capable each parent is to meet your child’s needs.
The court in Gibraltar cannot issue a ‘decree absolute’ unless it is satisfied that satisfactory arrangements have been made for any children.
Gibraltar passed the International Child Abduction Act in 2010 and it is an offence to take your child out of Gibraltar without the consent of the other parent. If this happens, you can apply to the relevant authority for the swift and safe return of your child.
Financial settlement on divorce in Gibraltar
When you divorce in Gibraltar, the court aims to achieve a fair outcome if it is required to divide your assets and property.
The court starts from a position of ‘equal division’ but your circumstances may mean that equal division is not appropriate. Examples of where a court may award an unequal split include:
- If you have received an inheritance or gift from a third-party during your marriage
- If you have contributed exceptionally to your joint assets and this justifies an unequal division
- If you’re the resident parent and there is a need for you and your child to be supported
- If you acquired property before you were married or ‘outside’ your marriage.
The court will aim to achieve a fair split of assets taking your personal circumstances into account.
The court also has the power to order that one spouse pays maintenance to the other above and beyond any child support. This may be a weekly or monthly sum depending on your needs and will continue until the recipient remarries. Remarriage does not affect any child support payments.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.