Albert v Albert (SCA 39 of 2020) [2023] SCCA 29 (25 August 2023)

COURT OF APPEAL OF SEYCHELLES

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Reportable

[2023] SCCA 29 (25 August 2023)SCA 39/2020

(Arising in CS MA 39/2019) out of DV 89/2018 (2020) SCSC 618

 

In the matter between

 

Marie Noelle Annick Albert                                             Appellant

(rep. by Mr Basil Hoareau)

 

And

 

Pierre France Joseph Albert                                             Respondent

(rep. by Miss Tamara Christen

______________________________________________________________________________

ORDER

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1. I allow ground three of the grounds of appeal.
2. I dismiss grounds one, two, four and five of the grounds of appeal.
3. In view of the dismissal of grounds one, two, four and five of the grounds of appeal, I uphold the order of the trial Judge that the application for "division of matrimonial property" is dismissed.
4. The trial Judge stated at paragraph [118] of the judgment that, "[…] the Respondent by judicial admission undertook to maintain the Petitioner [Appellant] as he is presently doing until the end of his days."
5. Each party shall bear her or his own costs.

 

JUDGMENT

Robinson JA (Dr. Tibatemwa-Ekirikubinza JA concurring)

INTRODUCTION

1. This judgment signed by my learned sister Tibatemwa-Ekirikubinza JA and myself has dismissed the appeal and upheld the order of the trial Judge that the application for "division of matrimonial property" is dimissed. My learned sister, Andre JA, has formulated a partial dissent with respect to the third ground of appeal, which she has dismissed. Andre JA has concurred with the order dimissing the appeal and upholding the order of the trial Judge that the application for "division of matrimonial property" is dismissed.
2. Marie Noelle Annick Albert, the Appellant, turned seventy-two years old when filing her application for an order for division of matrimonial property. Pierre France Joseph Albert is the Respondent. The Appellant and the Respondent are hereinafter referred to as "the Parties" where the context herein requires.
3. It is undisputed that this case involves a conflict of laws. The trial Judge stated correctly that the Supreme Court had jurisdiction to hear the matrimonial cause. The judgment of the Supreme Court delivered on 1 September 2020 is being challenged for having determined that the law of Mauritius applies to the determination of the Appellant's application.
4. I have to determine what law the Supreme Court should have applied in this case. The  Respondent, through Counsel, contended strongly that the Appellant did not seek any order for ancillary relief under section 20 of the Seychelles Matrimonial Causes Act, 1992.

BACKGROUND

5. It is undisputed that the Parties were married on 1 September 1975 in Curepipe, Mauritius, under the legal system of separation of goods and property or the régime légal de separation de biens. When they got married, they were both 27 years old. There are three children born of the marriage. After 43 years of marriage, the Parties divorced in Seychelles on 2 October 2018. The order of divorce was made final and absolute on 5 December 2018.
6. The Appellant is appealing against the judgment dismissing her application, in which she prayed to the trial Court for an order for division of the matrimonial property. In her affidavit in support of her application, she requested the trial Court to award her a half share in the properties and businesses owned by the Respondent. She claimed that this is in accordance with her right to assets under the "matrimonial law". By way of relief, the Appellant is asking this Court to quash the judgment and grant her the relief prayed for in her application.
7. The Respondent countered by contending that they intentionally and expressly celebrated and registered their marriage in Mauritius, as the Appellant is a Mauritian national and was domiciled in Mauritius with her entire family. He also claimed that they got married under the régime légal de separation de biens under the law of Mauritius. He pleaded that in terms of the régime légal de separation de biens under the law of Mauritius, each party retains his or her separate property during the marriage, and on dissolution thereof, neither party has a claim against the property of the other party.
8. Before analysing the Parties' contentions in this appeal, I outline the evidence presented by both Parties.

EVIDENCE OF THE PARTIES

The evidence of the Appellant

9. Before the trial Court, the Appellant adopted her evidence by affidavit in support of the application and gave oral testimony. The Appellant testified that at the time of the marriage, she was employed as a presenter at the Mauritius Broadcasting Corporation. The Respondent was employed as the manager of United Concrete Products Seychelles (hereinafter referred to as "UCPS"). The shareholder of UCPS was United Basalt Products Limited (hereinafter referred to as "UBPL"), located in Mauritius. The Appellant's father was the General Manager of UBPL. When her father came to Seychelles, he established UBPL, which is now known as UCPS. The Respondent has been affiliated with UCPS since.
10. She met the Respondent in Seychelles, where he worked at UCPS. After less than a year of being together, they got married as the Respondent was living in Seychelles while she lived in Mauritius.
11. She chose Mauritius as her wedding destination because her family resides there, and according to tradition, the bride's father bears the wedding expenses. Her father took care of all the expenses for the ceremony. Her family and the Respondent's parents, brothers, and sisters attended the civil ceremony for the wedding. It took place at the Civil Status office in Curepipe, Mauritius.
12. During the civil ceremony, the civil status officer asked them under which matrimonial regime they wanted to marry, and they both ʺdid not really knowʺ. She asked her father, "What is that?". He replied that he did not know and left the decision-making to her. Afterwards, her father mentioned the separation de biens, which they went along with. They were unaware of the contents of the document they signed. They had never spoken about the matrimonial regime which would govern their marriage. She did not deliberately decide to marry under the separation de biens before the marriage. After the marriage, she did not consider the separation de biens.
13. When told that she intentionally and expressly celebrated and registered the marriage in Mauritius as she is a Mauritian national and lived in Mauritius with her entire family, she stated ―

ʺA: […]. Why I would get married in Seychelles. My father was making the celebration and in Mauritius I have all my family friends in Mauritius and Joe like I tell you was very happy that it happened in Mauritius you know and his parents all together they did not ask anything and they just turned up for the wedding a few days before and they were very happy. There was no intention, strange intention. No, no.ʺ

14. She also denied the Respondent's claim in his affidavit in reply that they had both expressly and intentionally consented to get married under the separation de biens under the law of Mauritius. Although she wanted to get married in Mauritius, it was not because she intentionally wanted it to be governed by the separation de biens. Before the marriage, she had visited Seychelles once. After the marriage, they honeymooned in Reunion for a week and then moved to Seychelles, where they have lived since.
15. At the time of the marriage, the Respondent had nothing. He may have owned a small piece of land. He did not own a house and lived with his parents.  She stated that there was no particular reason for her to marry under the régime légale de separation de biens since neither of them had anything.
16. Given that the Respondent lived and worked in Seychelles, they knew she would move to Seychelles after the marriage. Initially, the Appellant lived at the Respondent's mother's home for three months before they rented a house at Anse La Mouche through UCPS.
17. During this time, she did not have a car and relied on the Respondent to drop her at UCPS in Anse de Genets, where she would take the bus to work. At the time, she had rented a small shop at the Pirates Arms. Meanwhile, the Respondent had access to a vehicle through UCPS.
18. Early in the marriage, her father-in-law gave them a property at Anse Soleil as a wedding gift. She did not know what has happened to the property. The Respondent bought the land where they had built their home.
19. Though she was born in Mauritius and has strong ties there with family, friends, and colleagues, she testified that she decided to give birth to their three children in Mauritius based on her preference for the health services available there and the support of her mother and family.
20. She denied that two of her sons attended school in Mauritius because she maintained strong ties with Mauritius. She clarified that they went to school in Mauritius because Seychelles did not allow Seychellois children to attend private schools then. They raised their children in Seychelles.
21. She closed the small shop in Pirates Arms and opened another shop outside. She ran the shops for five to six years. The earnings from the shops paid for electricity, rent, water and everything. The Respondent was earning only SCR2500/- at the time. After closing the shops due to a law requiring a certain percentage of duty on clothes, she looked after the children and their schooling and took care of the household. The Respondent provided for everything in the house. When they were doing well financially, she supported the Respondent's businesses by entertaining his associates and hosting dinners.
22. The Respondent rose within UCPS until he acquired it using money made by the same company. He additionally used money from UCPS to finance his other businesses and companies. Gradually, UCPS became more profitable, and the Respondent became wealthy.
23. The Respondent's first significant acquisition was a bankrupt destination management company (DMC), Creole Services Seychelles, which became Creole Travel Services, that he bought from the Government of Seychelles. She denied that the Respondent bought it using his funds. She did not make any financial contribution towards purchasing Creole Travel Services.
24. The Respondent also ventured into the tourism industry. He acquired a property at Cap Lazare, which initially had a small house. They spent weekends there, but the property was developed to receive tourists, and she played a significant role in this endeavour. She worked for ten years at Cap Lazare without receiving a salary. The source of funds used to purchase the property at Cap Lazare remains unknown to her. Initially, the infrastructure was limited to a small house and a toilet. Currently, Cap Lazare boasts a large kiosk to welcome tourists, a beautiful toilet built among the rocks, and one or two small houses that function as stores. Additionally, there is a new building under construction. She is unaware of where the funds for these developments came from.
25. There are two hotels under their operation: Le Domain de L'Orangeraie on La Digue and La Reserve on Praslin. While Le Domaine de L'Orangeraie is of a good standard, its accounting is poorly managed, and La Reserve is poorly maintained.
26. The Respondent bought catamarans in Australia for the Cat Cocos ferry service. At first, the ferry service had one boat, and the Appellant would make sandwiches every night for the business class passengers using her own funds, without asking for a refund.
27. She sold her house in Mauritius for 20,000,000/- Mauritian rupees. The notary who prepared the deed of sale did not ask whether or not she was married under the system of separation de biens. She claimed that she did not make it a point to inform the notary that she was married under the system of separation de biens. The Respondent did not claim any part in the proceeds of the sale.
28. When cross-examined, she stated that she graduated from the Sorbonne University in France. The Respondent, one of his brothers, and her father were present at the civil wedding. When asked if she was forced to sign the act of marriage (Marriage Certificate[1]), she denied it, stating that she signed it willingly, similar to how the Respondent signed it.
29. She accepted the following marginal entry recorded in the Marriage Certificate by the civil status officer who celebrated the civil marriage, ″the parties, on being asked, declare to me that they wish to be governed by the status of Married Women's Ordinance no. 50 of 1949.″ Her father advised them on the separation de biens, which they both opted for unaware of its implications. In the words of the Appellant, "[…] I get this choice on the day of my wedding. This is why my father was there." The civil status officer also told them that they could elect for their marriage to be governed by the legal system of community of goods.
30. Counsel asked the Appellant if she knew that her marriage was governed by the régime légal de separation de biens – I reproduce the following discourse between Counsel and the Appellant —

"Q:      And you also told Court that in some conversation with Mr Albert over the years he also told you if you go its legal separation and you will not get anything. You told us just now.

A:        Yes I think he is one of the reasons I never get a share because of the "martyr" I got with Mr Albert he was afraid that I leave.

Q:        How many years ago was the conversation in which he also expressly told you we are married under legal separation of good. How many years ago?

A:        No this is not true. One day he said-

Q:        How many years ago?

A:        Maybe 15 years, 12 years I cannot exactly remember the years that he said that. He said you will get nothing if you leave. This is what he told me. You will have to provide for your children and this is why I never leave him. I am sorry I did not have this life you think I got.

[…]

Q:        All along therefore you knew you were married under Mauritian law, under the separation of goods.

A:        I knew I was married; no I am not stupid that you think that I made this … for nothing. I am not stupid. I know following that after because I already talk to people. I have a lot of; lawyers in my family etc, etc and sure we talk about this […]  but I never thought Joe would have the bad heart to not give me but I was also afraid that if I leave I will go to Mauritius, sure but he will not give me money for my children."

31. Counsel told her that she had no intention of having the law of Seychelles govern her marriage as she had visited Seychelles only once at the time of the marriage and was not a Seychellois citizen. She replied that she did not intend for the law of Seychelles to govern the marriage as she was not a Seychellois citizen at the time. Like any woman, she wanted to get married surrounded by her loved ones and friends.
32. The Respondent raised loans to purchase shares in UCPS, but she was unaware of the exact number of loans. She accepted that she did not contribute financially towards the purchase of the shares in UCPS.
33. She accepted that one security officer was always present at the house. Regarding allegations of the Respondent paying for her holidays abroad, first-class travel, and medical bills, she denied the former two. She admitted that he partly paid for one medical bill. She disagreed that the Respondent maintained the family home she lived in, citing a leaking roof and a "black" swimming pool. The Respondent pays for three workers at her home, covers her water and electricity bills, and provides a car under UCPS. He also gives her 3,000/- Euros and SCR28,000/- per month.
34. After her father's death, she inherited 60,000 Euros and a few shares in UBPL, which the Respondent did not claim. She did not share the Respondent's inheritance. She accepted that the "Délégation de Pouvoir[2]" contained the statement that the marriage between the Parties, celebrated on 1 September 1975, was governed by the régime légal de separation de biens. She acknowledged signing the "Délégation de Pouvoir" after the notary explained its contents to her.
35. She reiterated that she was making a claim because she looked after the children. She accepted that the Respondent had been hardworking for over thirty years. She stated that she operated her shop for over five years and was a housewife for the remainder of the time.
36. When asked if she accepted that her standard of living had significantly improved because of the hard work of the Respondent, as they both started with nothing, the Appellant replied that she did not have a luxury house and could not even entertain guests for dinner because of the high prices in town. She explained that she lives in an old house and has to repair it everywhere. She had been using her furniture for over thirty years, and her roof was leaking. The money she received from the Respondent (SCR70,000/- per month) was insufficient, and she had to use her savings for travel and medical expenses. She even sold her house in Mauritius to obtain more money.
37. The Respondent gave her the house in Mauritius before their separation, as she was from Mauritius, and he thought she deserved something there. From 1975 to 1981, she had her shop, and her earnings helped pay for the house. She did not give the Respondent any share in the house she sold and the inheritance she received from her father. She claimed that the Respondent was keeping a lot of money with him. Although the Respondent provided for her, she felt he was only doing the minimum. Although the Respondent had made two of their sons chief executive officers, they do not have any power, and he had not put any house or flat in their names.
38. During re-examination, the Appellant stated that she did not know the family law of Mauritius or Seychelles. Before their civil wedding in Curepipe, they did not discuss the matrimonial regime under which they would be married. Regarding the "Délégation de Pouvoir" with respect to the deed of sale, the Appellant stated that she did not contribute to the wording of the document, nor was she present when it was drafted. The Appellant revealed that they did not discuss what law or legal regime would govern the marriage after they were married and living together.

Affidavit evidence of the Appellant

39. In her affidavit evidence, the Appellant stated inter alia that she would seek guidance from the trial Court regarding the ownership and value of the assets that make up the hotels, namely Le Domain de L'Orangeraie and La Reserve and the businesses carried on in the hotels.
40. She further stated that the Respondent had obtained various properties both locally and abroad under his name. She claimed that Schedule 1 exhibited with her affidavit did not accurately list all of the Respondent's properties. To ascertain the value of the Respondent's assets for post-divorce settlement, she will ask the trial Court directions for the independent assessment of all assets owned by the Respondent, whether directly or indirectly. She claimed that some of these properties were inherited while others were purchased.
41. She averred that Schedule 2 exhibited with her affidavit contained a list of companies and businesses owned by the Respondent, both directly and indirectly. She would seek directions from the trial Court for the evaluation and appraisal of the worth and market value of the companies and businesses.

 

42. She averred that she was unable to quantify the cash assets of the Respondent, but she believes these to be substantial. She has a cash holding of slightly over SCR5,000,000/-, which she obtained from the sale of her house in Grand Baie, Mauritius, and an inheritance from her father.

 

43. I pause here to state that valuers were appointed by the trial Court to value the properties listed in the affidavits of the Parties. No value for those properties was produced to the trial Court.

The evidence of Narghis Bundhun SC

44. Narghis Bundhun SC is a Mauritian barrister who was called to the Mauritian Bar in 1989. She has the right to practice in all Courts in Mauritius. She specialises in family law and has been a Fellow of the International Academy of Matrimonial Lawyers since 5 June 2009. The Respondent has instructed Narghis Bundhun SC to prepare an opinion, exhibit P22, which is hereinafter referred to as the ʺExpert Opinion P22″. 
45. Narghis Bundhun SC testified that before the enactment of The Status of Married Women Ordinance 50 of 1949[3], spouses had the option to make a marriage settlement /"un contrat de marriage" between them drawn up before a notary or be governed by the legal system of community of goods and property or the system of settlement of dowry. The Status of Married Women Ordinance 50 of 1949 provided another matrimonial regime for parties intending to marry to opt for. Under section 2[4](1) of the Status of Married Women Ordinance 50 of 1949, the parties intending to marry shall declare to the civil status officer at the time of celebrating the marriage that they wish to be governed by the provisions of the Ordinance.
46. Under section 2(2) of The Status of Married Women Ordinance 50 of 1949, a married woman to whom the Ordinance shall apply shall retain her full capacity to deal with her property, both movable and immovable, and to act in all matters as if she were not married. Before The Status of Married Women Ordinance 50 of 1949 came into force, a married woman "was incapacitated". That is to say, a married woman "could do nothing without her husband's authorisation".
47. Narghis Bundhun SC testified that the document format concerning the Marriage Certificate[5] was repealed due to the amendments made to the Civil Status Act by the Civil Status Amendment Act, Act No. 8 of 1997. Following the 1997 amendments to the Civil Status Act, the "Certified Extract of a Marriage Entry (Pursuant to the Civil Status Act 1981)" replaced the previous document format.
48. According to the "Marginal Entries" column in the Marriage Certificate, the following entry has been recorded, ″[t]he parties on being asked declare to me that they wish to be governed by the Status of Married Woman Ordinance 50 of 1949″. It is mandatory for a civil status officer, at the time of celebrating the marriage, to inquire about the matrimonial regime that would govern the spouses' assets after their marriage.
49. She emphasised that when the Parties got married in 1975, the law of Mauritius did not recognise the régime légal de separations de biens. The Status of Married Women Ordinance 50 of 1949 was repealed due to the amendments made to the Code Napoléon (Amendment No. 2) Act 1980[6]. The legal framework for the régime légal de separation de biens is stipulated in articles 1475 to 1478 of the Code Napoléon (Amendment No. 2) Act 1980.
50. She testified that the Parties certified extract of a marriage entry[7] mentions ″Matrimonial Regime/Régime Matrimonial Legal System of separation of goods Régime légal de separation de biens″ in one of its rows as a consequence of the amendments made to the Code Napoléon by the Code Napoléon (Amendment No. 2) Act 1980. Section 18 (2) (b) of the Code Napoléon (Amendment No. 2) Act 1980 stipulates ―

"(2)(b) [s]pouses who had, before the commencement of this Act, opted for the regime established by the Status of Married Women Ordinance, 1949 shall henceforth be governed by the provisions of articles 1475 to 1478 of the Code Napoléon, as amended by this Act, which, in relation to the legal régime of separation of goods and property, make the same provisions as those contained in the Ordinance." 

51. According to the Expert Opinion P22, ″the direct result of the 1980 amendment was that as of that year, the entry in the marriage certificate of those spouses who had elected to be married according to the 1949 enactment was amended to read "Legal System of Separation of Goods″ (at paragraph 22 of the Expert Opinion P22).
52. Article 1476 of the Code Napoléon (Amendment No. 2) Act 1980 stipulates that, "each spouse retains the administration, enjoyment and free disposal of his or her personal property as if he or she were not married" — ("1476. Chaque époux conserve l’administration, la jouissance et la libre disposition de ses biens personnel, comme s’il n’était pas marié."). The direct consequence of this provision is that "the "patrimoine" of each spouse shall be totally separate and distinct from that of the other spouse, in the same manner as if they were not married" (at paragraph 22 of the Expert Opinion P22). If a spouse who is married under the régime légal de separation de biens cannot provide proof of sole and exclusive ownership of an asset, it will be deemed to be jointly owned by both spouses.
53. Article 1476  also stipulates that each spouse "remains liable for all debts that arose of his or her own personal act before or during the marriage save for the situation of Article 221.″ — ("1476. […]. Chacun d’eux reste tenu des dettes nées en sa personne, avant ou pendant le marriage, hors le cas de l’article 221."). Narghis Bhundun SC testified that this provision does not apply if the debt was incurred to provide for the upkeep of the household and the education of the children.
54. The only instance where spouses are entitled as of right to a fifty percent share in the division of assets acquired in the course of the marriage is if they are governed by the legal system of community of goods and property or if they have changed their matrimonial regime to the legal system of community of goods and property at a later date.
55. She explained that the law of Mauritius distinguishes divorce and its consequences from the division of matrimonial assets following divorce. It was emphasised that a claim for maintenance can be made under the Divorce and Judicial Separation Act 1981 of Mauritius "but not in a claim for assets purchased after marriage or inherited or by whichever way acquired.″  She testified that the Mauritian Court shall have regard to the dedication of a spouse to the children and family in making a maintenance order under the Divorce and Judicial Separation Act 1981 of Mauritius.
56. Narghis Bundhun SC testified about the Appellant's declaration in the "Expédition 2007[8]", declaring that the Parties' marriage celebrated in 1975 was governed by the régime légal de separation de biens.[9] As background material to the "Expédition 2007", she stated that it was not the original notarial deed. Under the law of Mauritius, a notary provides the involved parties with an "expédition", which is a true copy of the original document signed in the presence of the notary. As per the "Expédition 2007", the Appellant had purchased shares in ″Société GBV Dix Huit″.
57. During her testimony, it was stated that the Appellant had also made a similar declaration in the ″Expédition 2018 Le 26 mars, DÉLÉGATION DE POUVOIRS DU GÉRANT de la société civile dénommée ″Société GBV Dix Huit[10]″, hereinafter referred to as the "Délégation de Pouvoir". The Appellant declared[11] in the "Délégation de Pouvoir" that the marriage between the Parties, which was celebrated on 1 September 1975, was governed by the régime légal de separation de biens.
58. Narghis Bundhun SC testified that changes made to the law of Mauritius enabled spouses previously governed by a specific matrimonial regime to switch from one matrimonial regime to another. Specifically, The Status of Married Women Ordinance 50 of 1949, was amended by The Status of Married Women (Extensions) Act 1979[12]. Under section 3 of The Status of Married Women (Extensions) Act 1979, persons married on or before 31 December 1979 and not previously governed by The Status of Married Women Ordinance 50 of 1949 could choose to be governed by the Ordinance. However, she testified that the said amendment did not apply to the present case as the Parties had already chosen to be governed by The Status of Married Women Ordinance 50 of 1949.
59. Secondly, under section 18 (3) (b) of the Code Napoléon (Amendment No. 2) Act 1980, spouses who, before the commencement of this Act, were married under a different regime may, until 31 December 1981, exercise an option to be governed by either the legal regime of community of goods and property or the régime légal de separation de biens established by the provisions of the Code Napoléon as amended in the Code Napoléon (Amendment No. 2) Act 1980.
60. The Parties had the option to be governed by the legal system of community of goods and property under the Code Napoléon (Amendment No. 2) Act of 1980. As per the Marriage Certificate, there was no indication that they had changed their matrimonial regime.
61. Narghis Bundhun SC referred to Jokhoo Shila v Jadoolall Jokhoo 1998 SCJ 84 (exhibit P26) and Mootoo v Mootoo (2009) SCJ 237 (exhibit P25), in which the Supreme Court of Mauritius applied the French and Mauritian principle of "l'autonomie de la volonté" or party autonomy. In both cases, the Supreme Court of Mauritius held that the marriage should be governed by the legal system of community of goods and property, based on the express intention of the spouses at the time of the marriage. She testified that the Mauritian Court has no discretion but to apply the intention of the spouses as expressed at the time of the marriage or thereafter by any change expressly made.
62. In Jokhoo Shila 1998 SCJ, the Supreme Court of Mauritius determined that a  parcel of land, purchased by the defendant (husband) during the marriage in 1982, belonged to the legal community of goods and property that existed between the parties. The parties were married in Mauritius in December 1972, moved to England in 1973 and got divorced in England in 1986.
63. In Jokhoo Shila 1998 SCJ, the plaintiff's Counsel argued that since the marriage took place in Mauritius, the law of Mauritius should be applied to the property in question. The defendant's position was that the parties got married in Mauritius with the intention of settling in England. Their children were born in England, where they also purchased the property and the defendant made alimony payments to the plaintiff. The defendant argued that their property should be governed by the legal regime prevailing in England.
64.  Narghis Bundhun SC pointed to the excerpt from Widow Canabady v Amurdalingum [1946] MR 56, which was quoted with approval in Jokhoo Shila 1998 SCJ ―

"the principle laid down by the French Courts that the regime applicable to spouses married without a marriage settlement should be deemed to be the one which the spouses had intended to adopt, can find its application only when a conflict of laws arises".

65. The learned Judge concluded in Jokhoo Shila 1998 SCJ ―

"[f]rom the evidence adduced and the principles referred to above, I am unable to say that the parties had intended that the law of England should govern their proprietary rights in Mauritius.ʺ

66. She also testified that if a couple gets married in Mauritius and later moves abroad, the properties they acquire abroad will also be governed by the matrimonial regime they chose at the time of the marriage. In Mootoo 2009 SCJ, the Supreme Court of Mauritius refused to enforce ancillary reliefs granted by a Birmingham Court in England in relation to the division of matrimonial assets pending divorce.
67. During cross-examination, Narghis Bhundun SC testified regarding exhibit P23, the Divorce and Judicial Separation Act 1981 of Mauritius, which shall be in addition to and not in derogation from the Code Civil Mauricien. She testified that the same Act provides the procedures for divorce and other related matters. The Divorce and Judicial Separation Act 1981 of Mauritius also addresses the legal consequences of divorce, such as granting provisional orders for alimony and maintenance.
68. When asked whether or not the Divorce and Judicial Separation Act 1981 of Mauritius applies to spouses governed by the legal system of community of goods and property and the régime légal de separation de biens, she explained that the said Act does not extend to matrimonial regimes.
69. Narghis Bundhun SC was asked whether or not section 16 (1)[13] of the Divorce and Judicial Separation Act 1981 of Mauritius, which deals with property transfer orders, is applicable to a marriage governed by the régime légal de separation de biens. She clarified that section 16 of the same Act pertains solely to the legal consequences of divorce and not to the dissolution or liquidation of any matrimonial regime. She testified that section 16 of the said Act concerns orders for alimony and maintenance.
70. She explained that a maintenance order could take the form of a monthly payment or be converted into a capital payment and may be granted to any party, regardless of the party's matrimonial regime. She clarified that in a divorce case, the Mauritian Court has the discretion to order one party to transfer property to the other party if it has been made a live issue in the divorce petition. The order can be made against the party at fault for the breakdown of the marriage under the law of Mauritius.
71. Counsel for the Appellant also questioned Narghis Bundhun SC about the discretion of the Mauritian Court under section 16 (1) of the Divorce and Judicial Separation Act 1981 of Mauritius. Concerning whether or not the Mauritian Court can transfer certain properties belonging to the guilty party to the innocent party in a divorce petition instituted on the ground of adultery, regardless of whether or not the legal system of community of goods and property or the régime légal de separation de biens governs the spouses. Narghis Bundhun SC testified that the Mauritian Court has the discretion to transfer if a demand is made in the divorce petition. She explained that, in Mauritius, the Family Division handles divorce cases instituted by way of petition under the Divorce and Judicial Separation Act 1981 of Mauritius.
72. She went on to testify that if the spouses are married under the régime légal de separation de biens, asset liquidation and distribution are unnecessary. If the parties are married under the legal system of community of goods and property, the proper procedure would be for either spouse to request an order from a Judge in Chambers to appoint a notary, who can be assisted by a valuer, to carry out an inventory of the assets and liabilities of the community before proceeding with the division process. This procedure is stipulated under the Wills and Succession Act. She added that the guilt of either party has no bearing on the division of matrimonial assets.
73. She accepted that the Mauritian Court shall have regard to the factors set out in section 17 of the Divorce and Judicial Separation Act 1981 of Mauritius when making orders under section 16 (1) of the Act.
74. Narghis Bundhun SC was asked to refer to the case of Shamtally Ahmad v Neza Nayamuth 1998 SCJ 106, exhibit P24. In this case, the Supreme Court of Mauritius sitting in Chambers highlighted that section 16 of the Divorce and Judicial Separation Act 1981 of Mauritius is influenced by section 24 (1) (a) of the Matrimonial Causes Act 1973 of England. She stated that Shamtally Ahmad 1998 SCJ was an application made by the applicant (husband) to prohibit the sale of the property before the Master's Bar, which was the matrimonial house of the spouses until their divorce. She emphasised that this case concerned a claim for alimony made by the applicant and to have the rights in the property transferred to his children under section 16 of the Divorce and Judicial Separation Act 1981 of Mauritius.

 

75. During re-examination, Narghis Bundhun SC was asked about how the Mauritian Court would deal with the matrimonial regime chosen by a couple who got married in Mauritius but then moved and lived in another country. She explained that the Mauritian Court would apply the law of the specific matrimonial regime selected by the parties involved. If the marriage certificate indicates the régime légal de separation de biens, the Court will apply the law of that system. If a couple gets married in Mauritius and later moves to another country, the same matrimonial regime they selected at the time of their marriage will govern any property they acquire in that country, according to Mootoo 2009 SCJ.

 

76. She reiterated that the Divorce and Judicial Separation Act 1981 of Mauritius applies to divorce and "has nothing to do with the liquidation of the matrimonial regime." The provisions of the same Act regarding judicial separation and property transfer orders apply during the provisional decree stage and after the decree absolute. This was observed in the cases of Shamtally Ahmad 1998 SCJ and Jokhoo Shila 1998 SCJ, where the parties got divorced in England.

 

            The evidence of the Respondent

 

77. The Respondent adopted the averments of his affidavit in reply and testified that he was born in Seychelles on 28 January 1948. After finishing school in Seychelles, he studied business management and business studies in London and Surrey. He returned to Seychelles and started working for UCPS, where he was appointed General Manager. The Appellant's father was the manager of UBPL in Mauritius and was instrumental in setting up UCPS in Seychelles. The Respondent was instrumental in securing funds from one Mrs Laxmanbhai to buy cement for the construction of Mahe Beach, a project that saved UCPS from going bankrupt.

 

78. He confirmed the Appellant's account of their meeting and subsequent marriage in Mauritius. The Appellant's family organised the wedding, attended by only eight people on his side, compared to the four hundred guests from the Appellant's side. Fares to Mauritius were expensive.

 

79. The civil wedding occurred on 1 September 1975 in Plaines Wilhems Curepipe at the Civil Status Office. His parents, brothers and sisters and witnesses and the Appellant's parents attended the ceremony. The civil status officer told them the two types of marriages available, namely separation de biens and community of goods, and the Appellant's father advised them that they should get married under the separation de biens. They followed the advice of the Appellant's father and signed the Marriage Certificate.

 

80. They initially lived with his parents before moving into a house he found for SCR2,000/-. UCPS did not provide him with a vehicle, but he did receive fuel. He was earning SCR2,000/- when they got married, and UCPS was not financially able to provide him with a house. They have three children, all born in Mauritius, as the Appellant did not have faith in the Seychelles' hospitals. They contributed to the household expenses and food bills, with the Appellant initially taking on a larger share.

 

81. His three children received their education in Seychelles and abroad. Gregory attended the International School and French School before moving to France and England. Jean Christophe started at Mont Fleuri Primary School before attending the Lycee in Mauritius and April-Fortier in Montreal, Canada. Guillaume primarily studied in Mauritius, except for attending French School for primary education in Seychelles and later going to South Africa and Brighton University in England.

 

82. The Appellant ran a small shop at Pirates Arms that was funded by the Respondent's father and his brother. Though the Appellant managed the shop, a salesperson from Baie Lazare was employed. They later secured a larger shop with a loan of SCR85,000/- from Standard Chartered Bank, pledging a plot of land he owned before their marriage as security. The Respondent used the loan proceeds to purchase clothes from Mauritius, with the Appellant assisting in selecting quality items. However, they encountered issues with the government and were forced to close both shops.

 

83. Through his hard work, he paid off the bank loans of UCPS with Barclays Bank, which amounted to SCR660,000/- at that time. He was not given any shares in UCPS; he travelled to Queensland for six weeks with hopes of immigrating there. Unfortunately, the sugar farmers there were experiencing financial difficulties. Upon his return, he received a commission from UCPS.

 

84. Back in 1985, the Government expressed interest in acquiring UCPS from its directors and shareholders. The Mauritians informed him that he would have to purchase UCPS to prevent the acquisition. Consequently, he obtained the necessary funds to buy UCPS by receiving SCR2,000,000/- in promissory notes from Mario Ricci, and securing a bank loan from Barclays Bank International for SCR4,500,000/-. With these funds, he bought the shares from the Mauritians.

 

85. He testified that he purchased several properties listed in his affidavit, mostly with bank loans. He bought parcels T74 and T727 with a personal bank loan from Barclays Bank International. The Appellant did not run the estate at Cap Lazare but kept an eye on it to ensure the money was banked and the stores were checked to prevent pilferage.

 

86. He purchased TSS ("Travel Services Seychelles"), a company where he had served as a director for six years. He then merged TSS with Cat Cocos, which he had developed with loans from the Mauritius Commercial Bank. The Appellant did not contribute financially towards the companies listed in his affidavit, and he still owed the banks substantial sums for them.

 

87. The Appellant receives about SCR68,000/- per month from the Respondent and was given a villa in Mauritius, which she later sold without sharing the proceeds with him. She resided in the matrimonial home, which has a large swimming pool, and all household bills, including the salaries of two security men, one driver, one domestic servant, and one gardener, are paid for by the Respondent. He also provided her with a car and covered all expenses related to it. The house was repaired and repainted only last year, and he had paid for her heart surgeries in the past and promised to pay for her future medical expenses. He also promised to give her two business-class tickets to Europe yearly and four more to Indian Ocean countries. The money used to finance these expenses came from his company's dividends. The Respondent lives a modest life, sometimes travelling economy class and only occasionally travelling business class.

 

88. During cross-examination, the Respondent promised to financially support the Appellant until the end of his days but has no plan to leave any property to her. The Respondent believes she is not capable of managing a company and intends to pass all properties to their three sons. The Respondent is willing to purchase a smaller house or apartment for the Appellant as the current home is too large for her to live alone.

 

89. He agreed that he owned ninety or ninety-nine percent shareholding in most of his companies, with the remaining shares in his sons' names. He claimed that the companies are experiencing financial losses and  unable to generate any profits or dividends. He also claimed that the hotels are struggling financially and have outstanding loans to be repaid. When asked about his monthly income from different companies, he was uncertain. In fact, he was unaware of his net worth. He has two accounts in Seychelles, one in France and another in Jersey, but he was not sure about the exact amount of money in those accounts.

 

90. In addition, he admitted to selling four plots of land for USD4,000,000/- in September 2018. He claimed that the land was his, and the funds were deposited into one of his company accounts. He admitted that he has properties abroad, with a house in France where he occasionally takes a break. Regarding UCPS, where he currently serves as chairman, he stated that the company would have to shut down unless it secured a new quarry. The current quarry only had enough rock supply for another year and a half. Over the past four years, no dividends had been paid to the shareholders.

 

91. The Respondent disputed the Appellant's claims that they had separated three or five years before the filing of divorce proceedings. He insisted that they had separated in 2009.

 

92. He started from nothing and worked hard to develop his portfolio of assets, which his wife had not contributed. He cared for her needs, such as providing housekeeping money, nannies for their children, and home help. He believed that, under the system of separation de biens, any property acquired would remain in his name.

PROCEEDINGS BEFORE THE SUPREME COURT

93. I state at the outset that the trial Court found that the sole prayer for relief, in this case, was for division of matrimonial property in a claim for ancillary relief. The Respondent contended in her skeleton heads of argument and at the appeal that the Appellant did not seek any order for ancillary relief under the Seychelles Matrimonial Causes Act, 1992.

 

94. The trial Judge identified these three questions for determination based on the pleadings and evidence of the Parties and their closing submissions ―   

 

"1        Whether the Court has jurisdiction to entertain the application under section 20 (1) of the MCA?

2.         Whether Seychellois law or Mauritian law should apply to the matrimonial regime of the parties?

3.         Whether the Appellant is entitled to relief under the MCA in the circumstances of having chosen the Mauritian property regime of séparations du biens?"

 

95. Regarding the first question, the trial Judge stated that the jurisdiction of the trial Court to hear the case was not disputed. I agree.

 

96. As for the second question, the trial Judge determined what law governs the matrimonial regime of the Parties. The closing submissions of the Appellant contended that English law should be used as the applicable private international law, and the Appellant's demand should be determined under the Seychelles Matrimonial Causes Act, 1992. Alternatively, Counsel for the Appellant contended that even if French private international law is applicable, the Seychelles Matrimonial Causes Act, 1992, should still be used to determine the Appellant's demand. On the other hand, the Respondent essentially contended in his closing submissions that, as the Parties got married under the régime légal de separation de biens under the law of Mauritius, the Appellant cannot pray for a division of matrimonial property.

 

97. The trial Judge held the view, at paragraph [105] of the judgment, that in Seychelles, the French rules of private international law should be followed in cases in the conflict of laws based on Seychelles' jurisprudence such as Rose v Mondon (1964) SLR 134, Morgan v Morgan (1972) SLR 79, and Pillay v Pillay (1978). The trial Judge also cited Intelvision Network Ltd & Ors v Multichoice Africa (SCA31/2014) [2015] SCCA 31[14], which she stated adopted a modern approach, as follows  —

 

"[106] A more modern approach has been adopted in the case of Intelvision Network Ltd & Ors v Multichoice Africa Ltd (SCA 31/2014) [2015] SCCA 31 )(28 August 2015), the Court of Appeal noted:

 

 [15] Rose decided that the judgment of the Court of Appeal of Seychelles in Austin v Bailey (1962) MR 115 had conclusively laid down the rules of private international law to be followed in Seychelles. In Austin, the Court of Appeal of Seychelles in Mauritius stated:

 

"Since the rules of private international law in any country must necessarily have their foundations in the internal laws of that country, those which are applicable must be based substantially on the provisions of our laws regarding civil rights and obligations. These laws are basically and almost entirely French so that, subject to any exceptions which may arise through litigation, the French Rules of private international law must guide us.

 

In 1975, we enacted our own Civil Code, and although it is substantially based on the Code Civil of France, logically it is our Code and the Seychellois jurisprudence emanating from it that must now guide us on the question of private international law."

 

98. In the present case, the trial Judge took into account any relevant fact and circumstance to determine the intention of the Parties as indicated in Dauban v De Failly (1943) SLR 93 and Sullivan v Sullivan (1962) SLR 318. She analysed the indices used to determine the parties' implied intention. She stated at paragraph [114] of the judgment that the marriage certificate was perhaps the most important indice. Based on her analysis of the evidence, the trial Judge concluded that the Parties intended for their marriage to be governed by the régime légal de separation de biens under the law of Mauritius. As a result, she held the view that the Appellant was not entitled to relief under the Seychelles Matrimonial Causes Act, 1992, on the basis that it was not within her power to adjust the ownership of properties when applying the régime légal de separation de biens, addressing the third question at hand. She dismissed the Appellant's application.

 

99. These paragraphs [108] to [115] of the judgment illustrate how the trial Judge addressed  the second and third questions at issue —

"[108] [T]o ascertain the parties' intention when they married, any relevant fact and circumstance may be taken into account. In the absence of anything to the contrary, the national law of the parties at the time of the marriage is presumed to be the law which the parties intended to govern their property rights  Sullivan v Sullivan (1962) SLR 318. While the jurisprudence cited here is dated, there is no reason to suggest that a different approach should apply in the present case.

[109]   The Respondent, a Seychellois domiciled in Seychelles, travelled to Mauritius for the wedding – which was hosted and attended mainly by the Petitioner's family who were based in Mauritius. In Mauritius, parties are asked what property regime they wish to marry under. The evidence of both parties was that the couple did not discuss what property regime they would marry under prior to their marriage. The first time it came up was when they were at the registry for the civil ceremony. The Respondent gave the following evidence which is worth repeating:

"My ladyship we came there without having ever discussed this. It is only when the Civil Status Officer explained, Mr Giraud turned to my father and his daughter and he said ʹwe would want the newly wed to be married under Ordinance 50.ʹ And he turned to my father and said ʹJoseph do you have any objection?ʹ My father said no. And to me, no, and to her, no, and we signed. I was the first to sign and she signed afterwards…"

[110]   When asked whether they both were clear as to what this meant, the Respondent said:

"But they made it very clear, they explained it to us. Séparation des biens … means what’s hers before remains hers and what was mine remains mine. And that was very clear." (page 57 of 63, transcript of proceedings dated 22 July 2019 at 2 pm)

                        [111]   And regarding assets acquired during the marriage, he said:

   "Well if she brought it in her name, it would be hers. If I bought it on my name it would be mine" (page 58 of 63, also see page 42 of 63 transcript of proceedings dated 22 July 2019 at 2 pm).

[112]   For the petitioner’s part, the evidence is much the same as regards how the decision was made, although she denies having a clear understanding of the regime and trusting her father’s advice. She explained:

"…infront of the Civil Officer he asked us after writing everything and after he asked us on which contract you want to get married and Joe and myself we just looked at each other we did not know really; I do not know if we were stupid at this time but we really did not know what it was meaning you know. So I turned to my father and I said what is that?And he said to me it is up to you and I said but I do not know; and my father saw to say séparation des biens. And it has come from my father really… (p17 of 40 transcripts of proceedings dated 11 July 2019 at 9.30 pm).

                        [113]   The Petitioner nevertheless gave evidence that there was no deliberate intention on the parties' part to marry under this regime. However, while the Petitioner may have chosen to take her father's advice on the matter, it is clear that she was aware that a decision was made, and that it was to marry under séparation des biens. The Petitioner’s Counsel submits that by electing their ʹdomicile matrimonialʹ in Seychelles, it was the intention of the parties to make their regime matrimonial to be governed by Seychellois law. Counsel then pointed out the ʹindices du domicile matrimonialʹ. The Petitionerʹs assumption is that the application of the MCA will entitle the Petitioner to a half share in the matrimonial property.

[114] However, the Court cannot overlook the other indices du domicile matrimonial pointed to by the Respondent, including maintaining close ties to Mauritius throughout the marriage during the marriage. Perhaps the most important indices the documentary evidence, this is the marriage certificate, which is an official and authentic document attesting to the regime chosen (Albert v Rose (2006) SLR 140; Hoareau v Hoareau (1984) SLR 108).

[115]   Altogether, the circumstances surrounding the marriage and subsequent events indicate an intention on the part of both parties to marry under Mauritian law, and specifically under the regime of séparation de biens. Had the parties intended to change the regime during the marriage, they were permitted to do so under Mauritian law. The parties married with the election that all property accrued during the marriage would remain separately owned. The parties intended that Mauritian law govern the marriage. Mrs Bhundun specified the division of matrimonial property is solely and exclusively determined by the choice of the regime., Thus, all properties individually purchased by the parties remain theirs individually. There is, therefore, no matrimonial property per se. This Court is not empowered by the application of Mauritian law to adjust the ownership of the properties when applying this chosen property regime."

PROCEEDINGS AT THE APPEAL

100. The judgment is being challenged on five grounds, which are reproduced verbatim hereunder ―

"2        Grounds of Appeal

1.         The learned trial judge erred in law and on the evidence in failing to hold that the applicable law was Seychellois and that section 20(1) of the Matrimonial Causes Act, 1992 was, therefore, applicable to determine the application for ancillary relief instituted by the Appellant.

2.         The learned trial judge erred in law and on the evidence in failing to hold that it was the intention of the Appellant and Respondent that their marriage would be governed by the Seychellois law regime.

3.         The learned trial Judge erred in law and on the evidence in holding that there was a Mauritian marriage contract between the Appellant and Respondent.

4.         In the alternative to grounds 1 to 3 above, the learned trial judge erred in law and on the evidence ―

(i)        in failing to hold that the court could grant the relief sought by the Appellant in accordance with section 16(1) of the Divorce and Judicial Separation Act, 1981

(ii)        by misinterpreting section 16(1) of the Divorce and Judicial Separation Act, 1981 of Mauritius.

5.         The learned trial judge erred in law and on evidence in failing to grant the Appellant a half share interest in the estate and properties of the Respondent."

101. By way of relief, the Appellant prayed to this Court to quash the judgment and consequently grant the relief prayed for in the Appellant's application.

Analysis of the contentions of the Parties

Ground three of the grounds of appeal

 

102. I will start by addressing the third ground of appeal. The reasons for doing so will become clear as I proceed.

 

103. Counsel for the Appellant contended that the trial Judge was wrong in law and on the evidence in implying the existence of a marriage settlement or "contrat de mariage" between the Parties.

 

104. The trial Judge stated at paragraph [99] of the judgment —

 

"[i]n the instant case, there is a Mauritian marriage contract and a Seychellois divorce. It was the clear election at the time of the marriage that the matrimonial property regime would be governed by the Mauritian law regime of separation des biens. This election, albeit mandated by statute, is a choice of law agreement, similar to that found in contracts. It expresses the intention of the parties as to which law of which jurisdiction will govern the administration of matters arising from that agreement". [Emphasis is mine]

 

105. On the other hand, Counsel for the Respondent contended that the trial Judge was correct in stating that there was a Mauritian marriage settlement. The reasoning of Counsel for the Respondent was that the Marriage Certificate was "akin to evidence of a contract", and that the choice of the régime légale de separation de biens under the law of Mauritius was similar to a choice of law clause that should be respected. Counsel for the Appellant also submitted that the election of the régime légale de separation de biens under the law of Mauritius, which she viewed as a choice of law clause, should be interpreted in a manner that reflected the common intention of the Parties in accordance with articles 1135 and 1156 of the Civil Code of Seychelles and the French Code Civil. She appeared to be submitting that what mattered was the common intention of the parties, rather than the literal sense of the words used.

 

106. From my understanding, the argument of Counsel for the Respondent is based on the doctrine of the proper law of contract, as applied by the Court of Appeal in Intelvision Network Ltd 2015 SCA. Counsel for the Respondent referred this Court to paragraph [13] of Intelvision Network Ltd 2015 SCA, which explains the doctrine as follows, "[t]he essential validity of a contract is governed by its proper law, in other words, the legal system by which the parties intended their agreement to be governed or where their intention is not stated, the legal system with which the agreement has its closest and most real connection to." There is no need for me to further elaborate on this doctrine.

 

107. After carefully considering the arguments presented by Counsel for both Parties, I have concluded that the contention of Counsel for the Respondent that the Parties entered into a marriage settlement under the law of Mauritius is unfounded. Conversely, Counsel for the Appellant rightly pointed out that Narghis Bhundun SC did not testify that the election of the régime légale de separation de biens under the law of Mauritius was equivalent to a marriage settlement under the law of Mauritius.
108. During the testimony of Narghis Bhundun SC, it was revealed that the Parties had four options for their matrimonial regime when they got married. These options were (i) The Status of Married Women Ordinance 50 of 1949, (ii) a marriage settlement, (iii) the legal system of community of goods and property, and (iv) the system of settlement of dowry. The Parties elected to get married under The Status of Married Women Ordinance 50 of 1949. According to section 2 (1) of the Ordinance, spouses intending to marry must declare to the civil status officer at the time of celebrating the marriage that they wish to be governed by its provisions. The Parties made this declaration at the time of the marriage, which was recorded in their Marriage Certificate and later amended to regime légale de separation de biens in the Parties' certified extract of a marriage entry.

 

109. On the other hand, it was mandatory to have a marriage settlement drawn up before the marriage by a notarial deed as per article 1394 of "Annexe N[15]". Additionally, according to the testimony of Narghis Bhundun SC, section 81 (3) of Ordinance No. 26 of 1890[16], which was in operation at the time of the Parties' marriage, required the civil status officer at the time of the marriage to inquire if the spouses had made any marriage settlement and, if so, the name of the notary who prepared it. Any statement made by the spouses must be recorded in the Act of the Civil Status. The marriage settlement became effective and enforceable starting from the date of the celebration of the marriage, in accordance with  "Annexe N."

 

110. Additionally, it is evident that Narghis Bhundun SC would not have been able to provide testimony stating that the express declaration made by the Parties regarding their marriage being governed by the régime légale de separation de biens was equivalent to a marriage settlement or "contrat de mariage" under the law of Mauritius. Both Counsel submitted at length concerning a judgment of the Court of Besançon of 22 December 1947 (Rev. crit. 1950 Somm. 663) referred to at note 64 of Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux. This judgment found that an express declaration was without a doubt not "un contrat de mariage au sens précis du terme, mais plus vraisemblablement" the declaration by the spouses concerned to adopt the régime légale de separation de biens. This decision is self-explanatory.

 

111. In light of the above, I accept the contention of Counsel for the Appellant that the trial Judge made an error by implying the existence of a Mauritian marriage settlement between the Parties. Furthermore, I find the case of Intelvision Network Ltd 2015 SCA and articles 1135 and 1156 of the Civil Code of Seychelles, cited by Counsel for the Respondent in support of her argument with respect to this ground to be misconceived. Counsel for the Appellant rightly pointed out that there was no evidence about a Mauritian marriage settlement during the testimony of Narghis Bhundun SC. Hence, I quash the finding of the trial Judge that there was a Mauritian marriage settlement or "contrat de mariage" and allow ground three of the grounds of appeal.

 

112. Despite my conclusion, I note that the finding of a Mauritian marriage settlement at paragraph [99] of the judgment had no bearing on the analysis and determination of this case before the trial Court. The trial Judge inferred the implicit intention of the Parties with respect to the governing law for the Parties' marriage and matrimonial property. The finding by the trial Judge of a Mauritian marriage settlement will also have no bearing on the outcome of this appeal.

 

113. After careful consideration of this case and based on my finding with respect to the third ground of appeal, I have disregarded any arguments related to a Mauritian marriage settlement between the Parties with respect to grounds one and two, presented by Counsel for the Appellant as two alternative grounds.

 

Ground one of the grounds of appeal

 

114. Concerning the first and second grounds of appeal, framed in the alternative, Counsel for the Appellant invited this Court to consider the issue of the applicable law. In my view correctly, the Parties are not disputing that the Supreme Court had jurisdiction to entertain the application under the Seychelles Matrimonial Causes Act, 1992.

 

115. At the appeal, Counsel argued the two alternative grounds separately, and I will address each of them separately.

 

116. Concerning the first ground of appeal, Counsel for the Appellant presented the following submissions in support of his claims that the applicable law should be the law of Seychelles, and that section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992, in conjunction with rule 4 (1) (f) of the Matrimonial Causes Rules are applicable in determining the Appellant's demand.  

 

117. In response to the Respondent's argument that the Appellant's application did not seek an order for ancillary relief under the Seychelles Matrimonial Causes Act, 1992, but rather sought a division of matrimonial property, Counsel for the Appellant argued that the application was not brought based on the dissolution or liquidation of any matrimonial regime. In this respect, he submitted that the relief was not being sought as a consequence of dissolution or liquidation of any matrimonial regime, but rather as a consequence of the Parties' divorce under the Seychelles Matrimonial Causes Act, 1992. He claimed that the Appellant recognises that the properties belong to the Respondent, but is seeking the Court's intervention, as a consequence of the divorce, to grant her rights in respect of such properties under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992.

 

118. In light of his submissions above, he contended that the trial Judge applied incorrect private international law of Seychelles to determine the application. He contended that the trial Judge was wrong on the law to determine that the law of Mauritius was applicable to the application by relying on cases based on French private international law such as Dauban [1943] SLR and Sullivan [1962] SLR, at paragraphs [106] to [115] of the judgment, as the law of Mauritius is irrelevant in determining the applicable private international law of Seychelles. He contended that the law of Mauritius would only become relevant if the private international law of Seychelles determined that the applicable law is the law of Mauritius. He emphasised that the determination of the applicable law should be considered solely from the perspective of Seychelles' private international law.

 

119. He explained that the private international law of England is applicable because Seychelles has borrowed its law regarding financial relief as a consequence of divorce and divorce from the Matrimonial Causes Act 1973 of England. He argued that since section 20 (1) of the  Seychelles Matrimonial Causes Act, 1992  has been inspired by sections 23 and 24 of the Matrimonial Causes Act 1973 of England, the English rules of private international law should guide Seychelles' Courts regarding the issue of conflict of laws relating to financial relief as a consequence of divorce. Counsel for the Appellant submitted that unless the law of Seychelles stipulates otherwise, its private international law should be similar to that of the law of England. To support his submissions, Counsel for the Appellant referred to Privatbanken Aktielseskan v Bantele [1978] SLR 226, Austin v Bailey 1962 MR 113, and Seychelles private international law in Intelvision Network Ltd & Ors 2015 SCA[17].

 

120. In support of his submission that the English rules of private international law should guide Seychelles' Courts regarding the issue of conflict of laws in this case, Counsel for the Appellant relied on Rule 50 (1) of the English private international law found at pages 391 and 392  of Dicey and Morris "The Conflict of Laws[18]", which provides —

 

"Rule 50.—(1) English courts have jurisdiction to make an ancillary order for financial provision on or after granting a decree of divorce, nullity of marriage or judicial separation whenever they have jurisdiction in the main suit."

 

121. The explanatory notes to Rule 50 (1) found at pages 393 to 394 of Dicey and Morris "The Conflict of Laws[19]" provide that Rule 50 (1) applies not only to orders for payment of money but also to orders for the transfer or settlement of property, as provided in section 24 (1) (a) and (b) of the Matrimonial Causes Act 1973 of England. He submitted that the powers of the Court under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992 are similar to those granted to the English Court under section 24 (1) (a) and (b) of the Matrimonial Causes Act 1973 of England. He submitted that the Supreme Court had jurisdiction over the main suit, the divorce petition, and this was not being contested.

 

122. He also relied on Rule 50 (5)[20] of the English private international law, which provides —

"(5) If a court has jurisdiction to make an order under this Rule, it will normally apply English domestic law."

123. Counsel referred to the explanatory notes to Rule 50 (5) of Dicey and Morris "The Conflict of Laws[21]" (at pages 404 to 405), which explains the English law principle that when making an order for financial provision, the English Court would apply its law. Rule 50 (5) provides —

"Clause (5) of the Rule. It has never been doubted that the court, when making an order for financial provision under the Matrimonial Causes Act 1973 or the Domestic Proceedings and Magistrates' Courts Act 1978 or their predecessors, always applies its own law, irrespective of the domicile of the parties. Thus where a divorce is granted in a case in which the parties are domiciled in Scotland one party cannot be heard to say that the order proposed to be made by the English court is more generous to the other party than any order which the Court of Session would be likely to make. Furthermore, the Court, in annulling the marriage of parties domiciled in Scotland, can order one party to make financial provision for the other, notwithstanding that by Scots law there is no power to make such provision when granting a decree of nullity."

124. He submitted that in Radmacher v Granatino [2010] UKSC 42, the English Supreme Court (formerly the House of Lords) reaffirmed the principle that when making an order for financial provision under the Matrimonial Causes Act 1973 of England, the English court would apply its law. The English Supreme Court held in Radmacher [2010] UKPC —

 

"103.   In England, when the court exercises its jurisdiction to make an order for financial relief under the Matrimonial Causes Act 1973, it will normally apply English law, irrespective of the domicile of the parties, or any foreign connection: Dicey, Morris and Collins, Conflict of Laws, vol 2, 14th ed 2006, Rule 91(7), and e.g. C v C (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250, at para 31.

 

108.     In summary, the issues in this case are governed exclusively by English law. The relevance of German law and the German choice of law clause is that they clearly demonstrate the intention of the parties that the ante-nuptial agreement should, if possible, be binding on them (see para 74 above)."

 

125. In light of his submissions, he emphasised that the trial Court may consider the Parties' matrimonial regime as a factor in determining the manner in which it will exercise its jurisdiction under section 20 (1) of the Seychelles Matrimonial Causes Act, 1992. He emphasised that the Parties' matrimonial regime should not be used as a factor for the trial Court to favour the application of the law of Mauritius over the law of Seychelles when deciding on ancillary relief.

 

126. On the other hand, as mentioned before, Counsel for the Respondent contended that the application did not seek any financial or ancillary relief under the Seychelles Matrimonial Causes Act, 1992. Instead, the Appellant sought a division of matrimonial property as a consequence of the dissolution or liquidation of the matrimonial regime. She went on to submit that the Supreme Court is empowered to grant maintenance or other financial relief orders as long as they do not conflict with the Parties' chosen matrimonial property regime — the régime légal de separation de biens. She claimed that making a property adjustment order would modify the rules of the matrimonial property regime chosen by the Parties, particularly articles 1475 to 1478 of the Code Civil Mauricien, which deal with the régime légal de separation de biens.

 

127. She also advanced some other arguments to refute the claims of Counsel for the Appellant that the trial Judge erred in not applying the private international law of England. From my understanding, she contended that neither the law of Seychelles nor the law of England recognises matrimonial property regimes. She submitted that in Seychelles, the French Code Civil, which was in operation, governed matrimonial regimes under "Title V – Antenuptial Marriage Settlement and Matrimonial Systems", until they were dissolved by section 25 (1) of the Status of Married Women Ordinance 9 of 1948 as from 28 April 1948. She submitted that matrimonial regimes are based on contract law and stem from the law of obligations and civil rights.

 

128. I pause here to state the response of Counsel for the Appellant regarding the submission at paragraph [126] hereof. Counsel for the Appellant argued that whether or not the law of England recognises matrimonial regimes is irrelevant. Instead, the focus should be on the law the trial Court should have applied when exercising its jurisdiction. As mentioned above, he stated that section 20 (1) of the Seychelles Matrimonial Causes Act, 1992 is inspired by sections 23 and 24 of the Matrimonial Causes Act 1973 of England. Therefore, Seychelles' Courts should be guided by the English rules of private international law to address conflicts of laws regarding financial relief as a consequence of a divorce.

 

129. Additionally, the point was made by Counsel for the Appellant that section 25 of the Status of Married Women Ordinance 9 of 1948 abolished the system of community of property in Seychelles. It was further submitted that from 20 April 1948 until July 2021, all marriages celebrated in Seychelles unless there was a marriage settlement, were by default subject to the regime of separations de biens. He submitted that there is no case in Seychelles where the Court has relied on the fact that the parties were married under the legal system of separation of goods  as a basis for exercising its powers under section 20 (1) of the Seychelles Matrimonial Causes Act, 1992. He submitted that this strengthens the argument that the trial Court should have applied section 20 (1) of the Seychelles Matrimonial Causes Act, 1992, despite the fact that the Parties were married under the law of Mauritius.

 

130. Counsel for the Respondent also provided arguments in support of her contention that the trial Judge made the correct decision by resolving the conflict based on French private international law, citing Dauban 1943 SLR, Sullivan 1962 SLR and Robert 1971 SLR, and Seychelles private international law as stated in Intelvision Network Ltd 2015 SCA. She argued that the Parties' intention was clearly expressed and that the law of Mauritius was the applicable law. These arguments will be considered under the second ground of appeal, framed in the alternative to ground one.

 

131. The submission of Counsel for the Respondent rested on this passage from Privatbanken [1978] SLR, in which Sauzier J, observed —

"[a]s far as the jurisdiction of the Supreme Court of Seychelles is concerned, it is now almost entirely governed by English law or by the law based on English law. Since the rules of private international law must necessarily have their foundation in the internal law, therefore those rules dealing with the jurisdiction of foreign courts in the international sense must be based substantially on the provisions of our law regarding the jurisdiction of Seychelles Courts, more particularly the jurisdiction of the Supreme Court of Seychelles. In this respect, therefore, we should be guided by the English rules of private international law. This is in accordance with the principle in Austin v. Bailey above referred to, which itself applies with reference to civil rights and obligations."

132. In Austin v Bailey 1962 MR, a case in the conflict laws, the Mauritian Court  stated —

"Since the rules of private international law in any country must necessarily have their foundation on the internal law of that country, those which are applicable must be based substantially on the provisions of our laws regarding civil rights and obligations. These laws are basically and almost entirely French, so that subject to any exceptions which may arise through certain statutory enactments […], we must be guided by French rules of private international law. [See Valery—Manuel de Droit International Privé p. 6 para. 3; Graveson — the Conflict of Laws, 4th ed., pp. 30-32; D'Arifat and ors. V. Lesueur, 1946 M.R. 191; Besson v. Besson, 1960 M.R. 140, 144; De Chazal v De Chazal, 1961 M.R. 5). [Emphasis is mine]

 

133. In my view, the principles set out in Austin v Bailey 1962 MR are important as their application could produce different results, as demonstrated by the arguments put forth by both Counsel. Counsel for the Appellant contended that there are instances where our civil rights and obligations are not based on French law, citing the Seychelles Matrimonial Causes Act, 1992 as an example of such an exception. Additionally, he submitted that unless otherwise stipulated by the law of Seychelles, its private international law in this case should be comparable to that of English law. If his arguments are correct, the trial Court should have considered the Parties' matrimonial regime as a factor in determining how it exercises its jurisdiction under section 20 (1) of the Seychelles Matrimonial Causes Act, 1992.

 

134. On the other hand, Counsel for the Respondent strongly contended that the law of Mauritius is the applicable law. This would mean that articles 1475 to 1478 of the Code Napoléon, as amended by the Code Napoléon (Amendment No. 2) Act 1980 would come into play according to her arguments.

 

135. After carefully considering the arguments put forth by both Parties, through Counsel, and accepting that this case involves a conflict of laws, I will begin by analysing the Appellant's demand in her application. Counsel for the Appellant has submitted that Seychelles' private international law should be similar to that of the private international law of England, which necessitates, in my view, a careful examination of the Appellant's demand.

 

136. At paragraph [83] of the judgment, the trial Judge noted that the sole prayer for relief was the division of matrimonial property, and that the Appellant failed to mention under which law the application was being brought. She observed that Counsel for the Appellant had cited section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992, in conjunction with rule 4 (1) of the Matrimonial Causes Rules during their closing submissions. She stated, at paragraph [86], that in Seychelles a party can seek the division of matrimonial property through a claim for ancillary relief, as was the case here. I will address the trial Judge's observations shortly.

 

137. On 1 February 2019, both Counsel for the Appellant, Mr Georges and Mr Hoareau filed a notice that the "Appellant intends to apply to the Court for a division of the Matrimonial Property". According to the Appellant's affidavit, the application for division of matrimonial property was based on "matrimonial law". Counsel for the Appellant contended that the notice in accordance with Form 2, has been properly framed in compliance with section 20 (1) (g) of the Seychelles Matrimonial Causes Act 1992, in conjunction with rule 4 (1) (f) of the Matrimonial Causes Rules.

 

138. He stated that the affidavit evidence of the Appellant also made it clear that she had prayed for financial relief under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992, in conjunction with rule 4 (1) (f) of the Matrimonial Causes Rules. In her affidavit in support of the notice, the Appellant averred, "29. I am instructed by my lawyers and verily believe that after long years of marriage, complete devotion to my children and husband until he left me, and direct assistance in our early and formative years of marriage while the Respondent was growing his business, I am entitled to a half share of all my husband’s assets and wealth. I so pray."
139. Section 20 of the Matrimonial Causes Act 1992 of Seychelles stipulates —

 

"20.     Financial relief

 

(1) Subject to section 24, on the granting of a conditional order of divorce or nullity or an order of separation, or at any time thereafter, the court may, after making such inquiries as the court thinks fit and having regard to all the circumstances of the case, including the ability and financial means of the parties to the marriage—

 

(a)       order a party to a marriage to pay to the other party or to any person for the benefit of the other party such periodical payments for such period, not exceeding the joint lives of the parties, as may be specified in the order;

 

(b)      pay to the other party or to any person for the benefit of the other party such lump sum in such manner as may be specified in the order;

 

(c)        secure to the satisfaction of the court a payment referred to in paragraph (a) or paragraph (b);

 

(d)       order a party to a marriage to pay to any person for the benefit of a relevant child such periodical payments for such period as may be specified in the order;

 

(e)        order a party to a marriage to pay to any person for the benefit of a relevant child such lump sum as may be specified in the order;

 

(f)        order a party to a marriage to secure to the satisfaction of the court a payment referred to in paragraph (d) or paragraph (e);

 

(g)       make such order, as the court thinks fit, in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party or a relevant child.

 

[…]". [Emphasis is mine]

 

140. Rule 4 of the Matrimonial Causes Rules stipulates —

"4. Claim for ancillary relief not included in the petition

(1)        Every application in a matrimonial cause for ancillary relief where a claim for such relief has not been made in the original petition, shall be by notice in accordance with Form 2 issued out of the Registry, that is to say, every application for:—

            (a)        maintenance pending suit;

(b)        payment by one party to the marriage to the other party or to any person for the benefit of the other party of periodical payments or for securing such periodical payments;

(c)        payment by one party to the marriage to the other party or to any person for the benefit of the other party a lump sum of money or for securing such payment;

(d)        payment by one party to a marriage to any person for the benefit of a relevant child periodical payments or for securing such payments;

(e)        payment by one party to the marriage to any person for the benefit of a relevant child a lump sum of money or for securing such payment;

(f)         an order in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party or a relevant child;

            (g)        the protection of a party to the marriage or a relevant child;

            (h)        restraining a party to a marriage—

(i)         from entering or remaining in any premises or any part of premises including the matrimonial home, where the other party resides or works;

(ii)        from entering the premises of any educational or training institution at which a relevant child is attending.

                        (i)         an order for the protection of the property of a party to the marriage or the matrimonial home;

            (j)         an order relating to the occupancy of the matrimonial home;

(k)        the discharge, modification or temporary suspension of an order made under paragraphs (a) to (j).

(2)        Unless these rules otherwise provide, every other application in a matrimonial cause or matter shall be made, and any leave or directions shall be obtained, by summons to a judge in accordance with Form 3." [Emphasis is mine]

141. Form 2 to rule 4 of the Matrimonial Causes Rules provides —

 

"Form 2

(Rule 3(1))

IN THE SUPREME COURT OF SEYCHELLES

IN THE MATTER OF A PETITION BY  __________ for __________

(here set out particulars of the matrimonial cause in which the application is made)

To ____________________

TAKE NOTICE that the petitioner (respondent) intends to apply to the Court for an order that ____________________(here set out the ancillary relief claimed.)

And take notice that the petitioner will be heard on the ____________ at ______________ and should you the said __________________ desire to be heard on the said application you are at liberty to appear to the said application on the said date and time.

This notice is issued by ____________________ (name and address of applicant or attorney) ____________________

Dated the __________ day of ____________ 19 ________". (Emphasis is mine)

142. Upon careful consideration of the law and the arguments presented by both Parties, through their respective Counsel, I conclude that Counsel for the Respondent is correct in her submission that the Appellant's application did not set out any ancillary relief under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992, in conjunction with rule 4 (1) (f) of the Matrimonial Causes Rules.

 

143. In my opinion, section 20 of the Seychelles Matrimonial Causes Act, 1992, indicates that it pertains to financial provisions and property adjustment orders in connection with divorce proceedings. The property adjustment orders for the purposes of section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992 are the orders concerned with property rights available for the purpose of adjusting the financial situation of the parties to a marriage and the children of the family on or after the grant of a conditional order of divorce, nullity of marriage or judicial separation. Under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992, the Court may make such order, as the Court thinks fit, in respect of any property that is owned, or in which an interest or right is held by a party to the marriage for the benefit of the other party.

 

144. In my analysis, I agree with the finding of the trial Judge that the sole prayer for relief is for division of matrimonial property under "matrimonial law". According to rule 4 (1) of the Matrimonial Causes Rules, the notice in accordance with Form 2 requires the Appellant to specify the ancillary relief being sought. Hence, it is unclear why the trial Judge concluded that the Appellant had claimed ancillary relief under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992.

 

145. It follows, therefore, that I find it unacceptable for Counsel for the Appellant to argue that the Appellant's demand for division of matrimonial property falls under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992, in conjunction with rule 4 (1) (f) of the Matrimonial Causes Rules, without stating the specific ancillary relief being sought. In such a case where it is necessary to determine what law the trial Court should have applied, I find that it was incumbent on the Appellant to specify the relief being sought. This is important considering the argument made by the Appellant, through Counsel, that there are instances where our civil rights and obligations are not based on French law, citing the Seychelles Matrimonial Causes Act, 1992, as an example of such an exception. He claimed that the Seychelles Matrimonial Causes Act, 1992, grants the Seychellois Court powers equivalent to those of an English Court under section 24 (1) (a) and (b) of the Matrimonial Causes Act, 1973 of England. I observe that Counsel for the Appellant did not explain whether the relief being sought for division of matrimonial property is obtainable under section 24 (1) (a) and (b) of the Matrimonial Causes Act, 1973 of England.

 

146. It also does not assist the Appellant's case to submit that the Appellant's claim for division of matrimonial property is not as a consequence of the dissolution or liquidation of any matrimonial regime, but rather as a consequence of the Parties' divorce under the Seychelles Matrimonial Causes Act, 1992. This argument is likely being made by Counsel for the Appellant because, in Mauritius, the only instance where spouses are entitled as of right to a fifty percent share in the division of assets (liquidation and dissolution) acquired in the course of the marriage is if they are governed by the legal system of community of goods and property or if they have changed their matrimonial regime to the legal system of community of goods and property at a later date. Narghis Bhundun SC testified that if the spouses are married under the régime légal de separation de biens, asset liquidation and distribution are unnecessary under article 1476 of the Code Napoléon (Amendment No. 2) Act 1980. From my understanding, based on Counsel's need to differentiate, it indicated that the relief claimed by the Appellant is vague and, hence, she did not seek any order for ancillary relief as a consequence of the divorce in her notice under the law of Seychelles.

 

147. Hence, I quash the finding of the trial Judge that the Appellant had claimed ancillary relief under section 20 (1) (g) of the Seychelles Matrimonial Causes Act, 1992.

 

148. For the reasons stated above, I find it unnecessary to consider the merits of ground one. It was contended that English rules of private international law should guide the Seychellois Court regarding the issue of conflict of laws in this case. It appears to me that the arguments put forward by Counsel for the Appellant are thought-provoking. It is expected that they would be raised again in another appeal.

 

149. Based on the reasons stated above, I determine that the contentions raised by ground one are misconceived because the Appellant did not seek any ancillary relief or financial relief under the Seychelles Matrimonial Causes Act, 1992 in her application.

 

150. Ground one stands dismissed.

 

Ground two of the grounds of appeal framed in the alternative to ground one

 

151. The dismissal of ground one leads to the dismissal of ground two, which was framed as an alternative ground. The argument is that if French private international law is used to determine Seychelles' private international law, the trial Judge should have applied the Seychelles Matrimonial Causes Act, 1992. After examining ground one, I have concluded that the Appellant did not seek an order for ancillary relief under the Seychelles Matrimonial Causes Act, 1992. Despite my finding, I have considered the merits of ground two for the sake of completeness.

 

152. Counsel for the Appellant submitted that according to French private international law, the applicable matrimonial regime for a marriage is determined by the law that the parties intended to apply at the time of the marriage, and in default of any written contract or definite expression of the intention of the spouses, the Court examines all surrounding circumstances to determine their common intention. This principle has been applied in Dauban 1943 SLR, Sullivan 1962 SLR and Robert 1971 SLR.

 

153. He contended that, in the present case, all relevant facts and circumstances that existed before, during, and after the marriage from which the intention of the Parties can be inferred should be taken into account since the Parties did not enter into a marriage settlement or make an express declaration about the matrimonial regime they intended to submit themselves to. He pointed out that the Appellant was a Mauritian citizen, and the Respondent was a Seychellois citizen at the time of their marriage.

 

154. The main focus of Counsel for the Appellant was that the Parties had intended their matrimonial regime to be governed by the law of Seychelles, as indicated by the indice du domicile matrimonial. He emphasised that French private international law, which is applicable as the Seychelles private international law, provides that the domicile matrimonial of the spouses after the marriage is the principal factor to take into account. He claimed that it was clear on the evidence that the Parties' domicile matrimonial had been Seychelles from the beginning of their marriage, which creates a presumption that the law of Seychelles should apply to their matrimonial issues.

 

155. He referred to various pieces of evidence, which he claimed strengthened the indice of the domicile matrimonial, namely that (i) the husband was prior to the marriage residing in Seychelles; (ii) the Respondent owns multiple businesses in Seychelles; (iii) the Respondent purchased a house at Ma Josephine, where the matrimonial home was set up; (iv) the Appellant became a Seychellois citizen; (v) their children were schooled in Seychelles; and (vi) the Parties, soon after settling in Seychelles, set up a commercial establishment, namely a shop in Pirates Arms Building, and, after that, they opened a second shop.

 

156. He referred to Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux, at notes 18, 22-35, 40-41, which makes an exposé of the indices recognised by the French jurisprudence to determine the implicit intention of the spouses. These notes from Dalloz Répertoire de Droit International[22] will be considered during my analysis.

 

157. Counsel for the Appellant discredited any reliance on the indice du lieu de célébration du marriage or the place of the celebration of the marriage in the presence of a domicile matrimonial caracterisé[23] to establish the matrimonial regime. He claimed that the Parties got married in Mauritius only to have their family and friends present and not because they intended for their marriage and matrimonial property to be governed by the law of Mauritius.

 

158. Counsel for the Appellant additionally submitted that the Parties being married under the régime légal de séparation de biens should carry no weight because the Parties did not consciously decide to marry under that regime. The Parties testified that the Appellant's father was the one who indicated they should marry under the régime légal de separation de biens during the marriage ceremony, and that they did not knowingly choose the régime légal de separation de biens. Counsel for the Appellant also argued that the birthplace of the children in Mauritius should not be taken as proof that the Parties intended their matrimonial regime to be governed by the law of Mauritius. The reason for giving birth in Mauritius was due to a lack of trust in the medical system in Seychelles, and not because the Parties intended to follow the law of Mauritius.

 

159. Based on the above submissions, Counsel for the Appellant argued that the trial Judge did not properly consider all relevant factors when determining the applicable law. He claimed that the trial Judge incorrectly relied on the nationalities of the Parties as the principal factor. Additionally, while the place of celebration of the marriage and the Parties adopting the régime légal de separation de biens and other indices du domicile matrimonial were taken into account, the Parties' domicile matrimonial was not given any weight. He submitted that if the trial Judge had taken into account all the relevant indices, she would have come to the inevitable conclusion that the applicable law to determine the application would be the law of Seychelles.

 

160. Additionally, the trial Judge failed to acknowledge that under the law of Mauritius, the Parties were compelled by section 2 of the Status of Married Women Ordinance 50 of 1949 to declare their intention regarding the application of the said Ordinance to their marriage. This was not a voluntary declaration he claimed.

 

161. Based on the above, Counsel for the Appellant submitted that under the French private international law, the matrimonial regime of the Parties' marriage is governed by the law of Seychelles. Therefore, the Seychelles Matrimonial Causes Act, 1992 is applicable to the Appellant's application.

 

162. On the other hand, Counsel for the Respondent disagreed with the submissions presented on behalf of the Appellant and contended in the main that the Parties had expressly chosen the régime légale de separation de biens based on the principle set out in Dauban 1943 SLR and Sullivan 1962 SLR.

 

163. Counsel for the Respondent also pointed out that Counsel for the Appellant had cited notes 18, 22-35 and 40-41 of Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux[24] on the subject of determining the implicit will of the parties.

 

164. She submitted that, in this case, there is no need to search for any tacit or unspoken manifestation of the intention of the Parties since their intention had been expressly stated. She referred to notes 62-65 of Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux,[25] which discuss situations where the parties' will is expressed. These notes state that if there is evidence of the parties' expressed will to be married under a specific law and matrimonial regime, it will outweigh any other indices, even the French law presumption that the husband's domicile is the domicile matrimonial in the absence of any other indice. In line with these legal principles, she contended that the evidence established that the property regime expressly chosen by the Parties was set out under the Status of Married Women Ordinance 50 of 1949, amended in 1980 to the régime légale de separation de biens.

 

165. Counsel for the Respondent also claimed that the trial Judge properly examined all circumstances surrounding the marriage to determine the parties' common intention and correctly concluded that the Appellant had no intention that the law of Seychelles should govern their marriage.

 

166. The following issues arise for determination based on careful consideration of the respective submissions of the Parties —

 

1. 1. 1. First, whether or not the Parties made an express declaration about the matrimonial regime they intended to submit themselves to;

 

1. 1. 2. Secondly, if that is not the case, it should be determined whether or not the trial Judge considered all relevant factors in determining the applicable law.

 

167. In the event that I conclude that the Parties did not make a deliberate and informed choice with respect to their matrimonial regime at the time of the marriage with respect to the first question at issue, I will determine whether or not the trial Judge considered all relevant factors or indices in determining the applicable law and elaborate on the submissions of Counsel for the Respondent.

 

168. It is stated in Intelvision Network Ltd 2015 SCA that Civil Code of Seychelles, enacted in 1975, and the Seychellois jurisprudence emanating from it must guide Seychelles on questions of private international law.

 

169. In the case of Dauban 1943 SLR, the plaintiff (wife), sued the defendants for the interest owed to her for a mortgage. The defendants contended that due to the matrimonial regime that governed the plaintiff's marriage, she could not provide a valid receipt for the money without her husband's approval. The defendants claimed that they were justified in withholding payment until the husband's approval was obtained.

 

170. The plaintiff, a French national residing in France at the time of her marriage, married Gaston Dauban, a British subject born in Mauritius, before the British Vice-Consul in Monaco on 16 April 1924, under the Foreign Marriage Act 1892. At the time of his marriage, the husband resided in Nice or Monaco and was domiciled in Seychelles. Between the date of their marriage and 1931, the husband claimed twice in his writings that he was married before a British Consul, in the separation of property. In 1941, he also claimed in writing that he was married in community of goods.

 

171. The Court applied French private international law to determine the matrimonial regime of the plaintiff. The court stated in Dauban 1943 SLR, "[w]e are, it is true, a British court, but as regards to Civil law, we administer French law, I am of the opinion that in deciding the point at issue in this case, we should be governed by the principles of French law as applied by French Courts". As there was no "contrat de marriage" drawn up prior to their marriage, and no express declaration by the spouses as to the matrimonial regime they intended to submit themselves to, the Court determined the common intention of the spouses.

 

172. The Court stated, "[i]n this case no marriage contract was drawn up and there is no express declaration by the spouses as to the matrimonial regime they intended to submit themselves to. In such a case it is clear from the numerous decisions of the various French Courts which I have just quoted that the Court must endeavour to find out the common intention of the spouses and to that effect it must, to use the words of the recent case reported in D.1912. 2. 152: "[p]our rechercher cette intention les juges doivent s'en tenir a la loi du domicle matrimonial ou à celle de la nationalité du mari, mais peuvent s’inspirer des faits posterieurs au marriage aussi bien que des faits contemporains et antérieurs."

 

173. In the case of Sullivan 1962 SLR, a husband (petitioner) and wife (respondent) were married in Kenya before 1948 while they were domiciled in Seychelles. They did not create an antenuptial contract at the time of their marriage.

 

174. The husband had no immovable properties then, but he later acquired three distinct immovable properties in Seychelles while on leave in 1938. The three immovable properties were sold by licitation in 1962 at the instance of the wife. The wife claimed to be the co-owner of these properties to the extent of a half-undivided share in community of all properties purchased by the husband after their marriage. The community was dissolved by section 23 of the Status of Married Women Ordinance (CAP. 102) on 21 April 1948.

 

175. The Court had to determine whether or not the husband and wife were married under the system of community of goods and property that existed in Seychelles until 21 April 1948 and was abolished by section 25 of the Status of Married Women Ordinance, or whether they were governed as regards their properties by the Law of Kenya where they contracted marriage.

 

176. The Court mentioned that under the law of Seychelles before 21 April 1948, when spouses did not execute an ante-nuptial contract as to property, they automatically became subject to the system of community of goods and property.

 

177. The Court addressed the conflict of laws regarding the applicable matrimonial regime for marriages of nationals of Seychelles abroad and found that the rules of private international law obtained in France should be followed.

 

178. In Sullivan 1962 SLR, the Supreme Court quoting with approval notes 205-208 from Dalloz, Encylopédie De Droit Civil, Tome I, Co. Contrat de marriage stated —

 

"[f]rom the above-mentioned authorities, it seems clear that French jurisprudence has adopted the principle that in cases of marriages contracted by French citizens abroad or by foreigners in France, the régime applicable to spouses married without a marriage settlement should be deemed to be that which the spouses had intended to adopt. I, therefore, propose to apply the same principle in this case as I am of the opinion that when this court is seized with a case of conflict of laws, the rules of private international law obtaining in France should be followed".

 

179. It is worthy of note that Counsel for the Appellant, in his submissions, has referred the trial Court and this Court to notes 202-208 from Dalloz, Encyclopédie de Droit Civil, Tome I, Co. Contrat de Mariage[26], which were used by the Court in Sullivan 1962 SLR. These notes assisted the Court in Sullivan 1962 SLR in determining how to establish the intention of the spouses where they did not execute an ante-nuptial contract regarding their property. According to these notes, the Court must establish the common intention of the spouses by taking into account all relevant facts and circumstances "existing before, at the time of or after the marriage" to enlighten the will of the spouses on the day of their marriage.

 

180. In Sullivan 1962 SLR, the learned Judge found —

 

 "[i]n my view of all the facts and circumstances clearly show that at the time of his marriage, the petitioner considered Seychelles to be his home, that he only stayed in Kenya to work and that his intention was always to return to Seychelles where he was born. I have, therefore, no difficulty in coming to the conclusion that at the time of his marriage in 1932 he never intended that his proprietary rights should be governed by the law of his native land, i.e. Seychelles, where he intended to return after his temporary stay in Kenya and which country he has always considered to be his home.

 

In so far as the wife is concerned there is no evidence that she possessed any immovable property in Seychelles either before or at the time of her marriage. Nor is there evidence that she possessed, then, any immovable property in Kenya. It is clear from her letters that she went to Kenya to work. There is no indication that she did not at the time of her marriage, intend to return to Seychelles. Considering all these factors I think that it must be presumed that she intended to adopt the matrimonial "regime" obtaining then in Seychelles, the country of her birth and that of her husband and their domicile."

 

181. In Sullivan 1962 SLR, the Court declared that the husband and wife were married under the system of community of property, which was obtained in Seychelles until 21 April 1948.

 

182. In the case of Robert 1971 SLR, the plaintiff (wife) married the defendants' father (Willy Robert) in Kenya in 1941 without an antenuptial contract or any declaration that they were married under the system of community of property. Both spouses were Seychellois. The defendants were the legitimate children of Willy Robert, who died intestate.

 

183. Willy Robert co-owned an immovable property with his children at the time of his second marriage. The property was acquired during the community that existed between himself and his first wife. After her death, Willy Robert owned one undivided half, and his four children inherited one-eighth each as heirs of their mother, who passed away.

 

184. The wife claimed that she was entitled to half of the investments made by Willy Robert during their marriage, as their marriage was governed by the community of property regime, which was dissolved by law on 20 April 1948. She claimed that the community in property was never partitioned between her and her husband. Sauzier J as he then was decided the case based on the rules of French private international law as set out in the case of Sullivan 1962 SLR and the principle set out in Austin v. Bailey (1962).

 

185. I have also thoroughly considered the cited notes 18, 22-35 and 40-41 from Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux referred to by Counsel for the Appellant. To ensure a thorough consideration, I have reproduced some relevant excerpts from these notes below —

 

"SECT. 2. — Application du principe au régime légal.

 

Art. 1er. — Détermination de la volonté implicite

 

18.       La détermination de la volonté des époux est une question de fait. C’est pourquoi la Cour de cassation a été amenée à abandoner en principe cette question à l'appréciation souveraine des juges du fond. Selon une formule très généralement reproduite, "il appartient au juge du fond d’apprécier souverainement d’après les circonstance de la cause le statut que les époux étrangers mariés sans contrat ont eu la volonté d’adopter pour le règlement de leurs intérets pécuniares" […].

 

[…]

 

25.       La jurisprudence des juges du fond, souverains dans leur appreciation, n’a pas démenti les prescriptions de la Cour de cassation et l’indice du domicile a été plus généralement retenu […].

 

26.       S’il convient de s’attacher aux formules employés par la cour de cassation pour juger de l’importance du domicile matrimonial, il est encore plus indiqué de se raporter aux cas d'espèce pour juger de cette importance.

 

27.       L’indice du domicile matrimonial prévaut à l’encontre de celui tiré de la nationalité du mari ou encore de la nationalité commune des époux (les décisions sont très nombreuses) […].

 

29.       Le domicile matrimonial, indice preponderant de la volonté des époux, est le lieu où ceux-ci entendent se fixer et fixent effectivement leur établissment d’une manière stable (BATTIFOL, no 620). […]. Aujourd'hui, on peut considerer que le premier domicile matrimonial à prendre en consideration est un domicile commun, effectif et stable. La notion de domicile conjugal légal n’est pas retenu en elle-même pour justifier de la volonté des époux et permettre la désignation de la loi applicable [...].

 

30.       On va voir que la plupart des décisions cherchent à corroborer l’indice du domicile par d’autres circonstances. Or, dans la plupart des cas d’espèce, ces circonstances (residence antèrieure au marriage, exercice d’une profession, localization des intérets du ménage, etc) accentuent le caractère effectif du domicile considéré. Lorsqu’il est difficile de déterminer un domicile matrimonial présentant les caractères énoncés, l’accent sera mis sur d’autres indices, notamment sur celui de la localization objective des biens des époux […].

 

§3. Autes indices utilisés pour la détermination de la volonté implicite

 

1. — Circonstances postérieures au marriage

31.       On rélèvent souvent dans des décisions le fait que l’étranger — ou les deux époux — résidaient déjà avant le marriage au lieu du domicile conjugal […], donnant compétence à la loi française du domicile de deux Italiens mariés en Italie, relevaient que les époux (1re esp.) ou le mari (2e et 3e esp.) étaient déjà domiciliés ou résidaient en France avant le marriage).

32.       D'autres circonstances reforcent la présomption du domicile matrimonial. On relève notamment : la création ou l’acquisition d’un établissement industriel, commercial, artisanal ou agricole au lieu du domicile […].

33.       Les décisions relèvent également l’acqusition d’intérêts non commerciaux comme l'achat ou la construction d’immeubles, voire même l’acqusition d’une concession funéraire […].

34.       L’exercice d’une profession est également un indice de nature à corrober l’indice du domicile matrimonial […].

35.       D’autres indices postériueus au marriage tenant à la personne des époux ont été retenus par la jurisprudence comme prevue de leur volonté de s’installer définitivement dans le pays de leur domicile matrimonial : une naturalization […]. Parfois même, on relève des circonstances tenant à la personne des enfants (leur éducation        […]: leur service millitaire ; leur mort au champs d'honneur […].

36.       D’autres indices postérieurs au marriage sont retenus par la jurisprudence dans la mesure où ils éclairent l'intention des époux de se soumettre ou, mieux, leur conviction d’être soumis à un certain régime à l’occasion de certains actes.

[…]

B. — Circonstances concomitants au marriage : lieu et forme de la célébration

40.       Le lieu du marriage n’est pas retenu en lui-même par la jurisprudence pour justifiés de la volonté tacite des époux. Dans de très nombreuses decisions, le lieu du marriage est relevé dans la mesure où il concide avec le domicle matrimonial et pour fortifier cet indice […].

41.       L’indice du lieu de célébration est écarté devant un domicile matrimonial caractérisé […]."

186. In Dauban 1943 SLR, Sullivan 1962 SLR and Robert 1971 SLR, the Court dealt with the implicit will of the spouses who did not draw up a marriage contract or declare their legal matrimonial regime. Counsel for the Appellant referred to the notes discussing the indices that the Court should take into account in determining the implicit will of the spouses.

 

187. It was agreed at the appeal by the Appellant and the Respondent, through Counsel, that the implicit will of the Parties can only be considered if no marriage settlement was drawn up or no legal matrimonial regime was declared. Counsel for the Respondent referred this Court to notes 62-65 of Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux, which discuss the application of the principle of party autonomy to the legal regime where the will of the parties is expressed —

"TIT. 1. — DÉTERMINATION DE LA LOI APPLICABLE, 1-140.

[…]

Art. 2. — Cas d’une volonté exprimée, 62-66

62.       Il se peut que les époux avant le mariage ou au moment du mariage aient manifesté une volonté expresse de se soumettre à une loi determinée. Le cas sera peu fréquent car, lorsque les époux pensent à régler leurs relations pécuniares au moment du mariage, ils adoptent généralement un régime conventionnel. Il faut cependent signaler à ce propos que le code monégasque prévoit dans son article 64, alinéa 3, qu’au moment du mariage l’officier d’état civil interpelle les époux et que ceux-ci doivent opter, en l’absence de contrat, soi pour leur loi nationale soit pour la loi monégasque. Il se peut aussi que des époux qui se marient en pays étranger sans faire de contrat de mariage formel déclarent devant une autorité (notaire, consul) qu’ils entendent être soumis, à leur loi nationale. Si la jurisprudence est quasiment inexistante sur ce point, le cas n’est pas exceptionnel dans la pratique. Il est vraisemblable que l’existence d’une preuve de la volonté expresse des époux (non sujette à caution puisque émise avant le ou au moment du mariage) favorise les règlements amiables.

63.       En effet, si telle volonté est exprimée, dans la logique de l’autonomie de la volonté, on doit donner compétence à la loi désignée par les parties, et cela malgré l’existence d’un domicile matrimonial caractérisé ; sinon, ça serait détruire la base même du système.

64.       Un arrêt de la cour de Besançon du 22 décembre 1947 (Rev. crit. 1950 Somm. 663) à déclaré que « lorsque les èpoux dont le mari est italien et la femme française ont reconnu devant notaire qu’aucun contrat n’avait précédé leur union, il y a eu lieu cependant d’autoriser l’un des époux à prouver que, malgré cette déclaration, la veille du mariage, les futur époux se sont rendus au consulat italien et ont déclaré adopter le régime legal italien de la séparation de biens dont il fut dressé un acte signé ». La déclaration au consulat dont fait état l’arrêt n’était sans doute pas un contrat de mariage au sens précis du terme, mais plus vraisemblablement la simple déclaration d’adopter le régime légal italien, qui est précisément le séparation de biens. La cour autorise la recherche d’une telle preuve car « l’intention commune des époux détermine seule le statut matrimonial des étrangers qui contractent mariage en France ». C’est dire que si une preuve expresse de la volonté est apportée on la fera prévaloir à l’encontre de tout autre indice. »

65.       La volonté des époux d’être soumis à une loi a pu s’exprimer dans un véritable contrat de mariage. Si ce contrat est annulé, par exemple en raison de l’incapacité des époux, la soumission à la loi applicable pour régir le régime conventionnel subsiste et c’est cette loi qui déterminera le régime légal appelé à remplacer les dispositions conventionnelles annulées […]". (Emphasis is mine)

188. After carefully considering the notes and the submissions made by both Counsel on  the questions at issue, I accept the submission of Counsel for the Respondent that the expressed will of the Parties to marry under a specific law and legal matrimonial regime, in line with the principle of party autonomy, should take precedence over "tout autre indice" or any other indice. I am reinforced in that view by note 63 of Dalloz Répertoire de Droit International[27], which states, "[e]n effet, si telle volonté est exprimée, dans la logique de l'autonomie de la volonté, on doit donner compétence à la loi désignée par les parties, et cela malgré l’existence d’un domicile matrimonial caractérisé ; sinon, ça serait détruire la base même du système. […] C’est dire que si une preuve expresse de la volonté est apportée on la fera prévaloir à l’encontre de tout autre indice." (Emphasis is mine). I have explained under ground three as to why the declaration of the Parties cannot be considered a marriage settlement in accordance with the law of Mauritius based on the testimony of Narghis Bhundun SC.

 

189. I have to determine whether or not the Parties made a deliberate and informed choice with respect to their matrimonial regime at the time of the marriage. With respect to the question at issue, Counsel for the Appellant submitted before the trial Court and at the appeal that the Parties did not make an express declaration regarding the matrimonial regime they intended to submit themselves to.

 

190. Counsel for the Appellant contended that the Parties did not consciously choose the régime légale de separation de biens during the marriage ceremony. Therefore, according to Counsel, they could not have fully understood the implications of their declaration. Counsel for the Appellant also submitted that under the law of Mauritius, the Parties were compelled by section 2 of the Status of Married Women Ordinance 50 of 1949 to declare their intention regarding the application of the said Ordinance to their marriage. According to his submission, this was not a voluntary declaration.

 

191. Additionally, Counsel for the Appellant contended that the Parties made a declaration for their marriage to be governed by The Status of Married Women Ordinance 50 of 1949, rather than the régime légale de separation de biens. He went on to submit that Narghis Bhundun SC explained that the purpose of The Status of Married Women Ordinance 50 of 1949 was to empower married women to independently manage and dispose of their assets acquired before or during the marriage without the need for their husband's authorisation or intervention. He submitted, in essence, that The Status of Married Women Ordinance 50 of 1949 did not create a "separation de biens", but rather allowed married women to maintain their independence.

 

192. In my judgment, the Appellant faced several challenges with his submissions, which I will explain.
193. The Appellant is a citizen of Mauritius, who graduated from the Sorbonne University in France and, at the time of the marriage, was employed as a presenter at the Mauritius Broadcasting Corporation. She is now a naturalised Seychellois. The Respondent is a citizen of Seychelles and, at the time of the marriage, was employed as the General Manager of UCPS. Prior to her marriage, the Appellant lived in Mauritius, and the Respondent lived in Seychelles. The Parties testified that they had no assets at the time of the marriage. The Appellant knew at the time of the marriage that she would move to Seychelles, given that the Respondent lived and worked in Seychelles.

 

194. Before its repeal in 1980 due to the amendments made to the Code Napoléon (Amendment No. 2) Act, The Status of Married Women Ordinance 50 of 1949 had been in operation for over thirty years in Mauritius. Narghis Bhundun SC testified that The Status of Married Women Ordinance was not the sole option available to the Parties. According to the Appellant's testimony, the civil status officer who celebrated their wedding in 1975 provided them with a choice of matrimonial regime.

 

195. During the trial, Narghis Bhundun SC testified that under the law of Mauritius, parties intending to enter into civil marriage must choose a matrimonial regime. She explained clearly that the Parties had the option to create a marriage settlement or "contrat de marriage", be governed by the legal system of community of goods and property, or the system of settlement of dowry when they married in 1975. She also mentioned that The Status of Married Women Ordinance 50 of 1949 provided yet another matrimonial regime for the Parties to opt for.

 

196. I observe that Narghis Bhundun SC was not asked if the Parties' selection of The Status of Married Women Ordinance 50 of 1949, based on the Parties' evidence that it was suggested by the Appellant's father, would offend the Mauritian Court. Narghis Bhundun SC was also not questioned about whether or not the Parties' declaration was voluntary. Counsel for the Appellant had argued that under section 2 of The Status of Married Women Ordinance 50 of 1949, the Parties were compelled by the law of Mauritius to declare their intention regarding the application of the said Ordinance to their marriage. I mention that this issue is being raised for the first time on appeal as submitted by Counsel for the Respondent.
197. In my view, an important factor, in this case, was the amendments made to the Code Napoléon through the Code Napoléon (Amendment No. 2) Act 1980, specifically sub-sections 18 (2) (b) and 18 (3) (b) of the said Act. Narghis Bhundun SC testified that prior to 1980, there was no law in Mauritius that permitted any change in the matrimonial regime, except for the provisions in The Status of Married Women (Extensions) Act 1979, repealed by the amendments made to the Code Napoléon (Amendment No. 2) Act 1980, which did not apply to this case.

 

198. According to the testimony of Narghis Bhundun SC, under section 18 (2) (b), spouses who had previously chosen the regime established by The Status of Married Women Ordinance 50 of 1949 may have opted to be governed by the provisions of articles 1475 to 1478 of the Code Napoléon, as amended by the Code Napoléon (Amendment No. 2) Act 1980, which in relation to the régime legal de separations de biens, make the same provisions as those contained in the Ordinance.

 

199. From the testimony of Narghis Bhundun SC, the Parties also had the option to change their matrimonial regime under the law of Mauritius after the repeal of The Status of Married Women Ordinance 50 of 1949 in 1980. The Parties may have opted to be governed by the legal system of community of goods and property under section 18 (3) (b). According to her, the Code Napoléon (Amendment No.2) Act 1980, specifically section 18 (3) (d), required the inclusion of the change in the marriage certificate. The evidence showed that the Parties' declaration was recorded in the Marriage Certificate, which was later amended to regime légale de separations de bien in the Parties' certified extract of a marriage entry. There is no evidence that the Parties had attempted to change their matrimonial regime. They opted for the régime légal de separation de biens.

 

200. In my judgment, if the Appellant was not well-informed and did not make a voluntary declaration regarding The Status of Married Women Ordinance 50 of 1949 at the time of her marriage in 1975, it is likely that she and the Respondent would have taken necessary steps to change their matrimonial regime in 1980. It is not evident how Counsel for the Appellant could have persuaded any Court that the Appellant's choice was not informed and deliberate because her father recommended getting married under the régime légale de separation de biens on the day of the marriage. The Appellant testified that she signed the Marriage Certificate voluntarily and was not forced, similar to the Respondent's situation.

 

201. I find as a fact on the clear evidence of the Appellant that she was aware throughout the marriage that she was married under the régime légale de separation de biens and understood its implication. In my judgment, the Appellant is claiming that she did not make an informed decision about the matrimonial regime she and the Respondent chose because of the legal implications of the régime légal de separations de bien under the law of Mauritius. According to the testimony of Narghis Bhundun SC, the Mauritian Court has no discretion but to apply the express intention of the spouses at the time of the marriage or thereafter by any change expressly made based on the principle of party autonomy. This testimony of Narghis Bhundun is uncontradicted. In my judgment, the Appellant would not have made the same argument if she and the Respondent had chosen the legal regime of community of goods and property under the law of Mauritius in view of the determination of the Mauritian Court in Jokhoo Shila 1998 SCJ and Mootoo 2009 SCJ.

 

202. After careful consideration, I hold that the Parties had expressly declared their intention for the marriage to be governed by the régime légale de separation de biens under the law of Mauritius. Hence, I find that the trial Judge erred by not considering this approach in the present case and quash her finding that it was the implicit intention of the Parties for their marriage to be governed by the law of Mauritius.

 

203. For the reasons stated above, ground two is misconceived and stands dismissed. The reasons for my conclusion are different from that of the trial Judge as explained.

 

Ground four of the grounds of appeal as an alternative to the first, second and third grounds of appeal

 

204. Ground four is presented as an alternative to the first, second, and third grounds of appeal. Counsel for the Appellant argued that if the applicable law is that of Mauritius, the trial Court could have granted the ancillary relief under section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius. Additionally, Counsel for the Appellant claimed that the trial Judge had misinterpreted section 16 (1) of the same Act. After careful consideration, I have determined that the Appellant did not seek any order for ancillary relief under the Seychelles Matrimonial Causes Act, 1992. The Appellant sought only an order for division of matrimonial property under "matrimonial law". Nonetheless, I will consider this ground and the reasons for doing so will become clear as I address it.

 

205. Section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius stipulates that, "[o]n granting a decree, the Court may order a party to transfer to the other party such property as may be specified in the order within such time and on such conditions as the Court thinks fit."

 

206. Based on the testimony of Narghis Bhundun SC, the trial Judge determined that section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius only applies to claims for alimony and maintenance. Counsel for the Appellant did not agree with this finding.

 

207. The basis for the argument with respect to ground four is that section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius draws inspiration from section 24 (1) (a) of the Matrimonial Causes Act, 1973 of England as observed in the case of Shamtally Ahmad 1998 SCJ. It is important to mention that Shamtally Ahmad 1998 SCJ was related to a claim for alimony under section 16 of the Divorce and Judicial Separation Act, 1981 of Mauritius.

 

208. Counsel for the Appellant also highlighted the testimony of Narghis Bhundun SC, who explained that section 16 of the same Act does not have any bearing on matrimonial regimes. Instead, she emphasised that there is a distinction between the dissolution or liquidation of a matrimonial regime and a divorce under the law of  Mauritius. He also highlighted the testimony of Narghis Bhundun SC, which stated that the Mauritian Court has the power to transfer specific properties from the guilty party to the innocent party in a divorce case filed on the ground of adultery. He submitted that adultery committed by the Respondent was the basis of the divorce in this case.

 

209. I have also considered the cross-examination of Narghis Bhundun SC regarding section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius, which was referred to by Counsel for the Appellant in his skeleton heads of argument as follows —

 

         "Q:      [B]ut it also mentions section 16.

A:        Yes it does mention section 16, but I said earlier on, the transfer property order is as a consequence as – consequence du divorce, not as a consequence of the liquidation of the matrimonial regime.

 

Q:        I am concerned about the divorce.

A:        Yes the divorce. This is the divorce.

 

Q:        So the Court will be guided by these circumstances.

A:        Yes, yes in the divorce.

 

Q:        Madam if you look at section 17.

 

A:        Yes.

 

Q:        The matters or the factors laid down expressly, they are non-exhaustive, correct?

A:        Yes. Agree.

 

Q:        So yesterday you made mention you stated that and I believe that you were referring to the dissolution of the marriage you mean dissolution of the matrimonial regime?

A:        I am sorry Counsel. When you mean dissolution of the marriage you mean dissolution of the matrimonial regime?

 

Q:        Yes exactly. My mistake. You said the Court will not be concerned with the duration of the marriage.

A:        In proceeding with the division, the proper word is liquidation or dissolution of the matrimonial regime.

 

Q:        But in a divorce –

A:        In a claim for alimony yes.

 

Q:        And also in a claim for transfer of properties under section 16 for a divorce, as a consequence of divorce, the court will take into account the duration of a marriage?

A:        That again comes within the consequence of the divorce, alimony and maintenance.

 

Q:        Yes, and also transfer of properties under Section 16?

A:        Yes, but again that is a consequence of the divorce.

 

Q:        Exactly, Thank you, Madam. And in fact Madam –

A:        And normally – if I may my Lady. Normally this claim whether it be a capital payment, transfer of property or monthly payment order is made in the divorce petition, so that the Judge adjudicates at provisional stage on it". (Emphasis is mine)

 

210. Counsel for the Appellant also referred to section 17 of the Divorce and Judicial Separation Act, 1981 of Mauritius, which sets out the factors that the Mauritian Court should take into account when exercising its powers under section 16 (1) of the same Act. He also referred to section 2 of the same Act, which defines "property" as "moveable or immovable property or part of property and includes money".

 

211. After considering the arguments presented by both Parties, through their respective Counsel, I have come to the conclusion that this ground of appeal is misconceived.

 

212. Counsel for the Respondent submitted, correctly in my view, that the testimony of Narghis Bhundun SC underscored that sections 16 and 17 of the Divorce and Judicial Separation Act, 1981 of Mauritius deal with the legal implications of divorce, specifically the granting of orders for alimony and maintenance. Hence, it is unclear why Counsel for the Appellant is claiming that the trial Judge misinterpreted section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius.

 

213. It follows, therefore, that the trial Court could not have granted any ancillary relief under section 16 (1) of the Divorce and Judicial Separation Act, 1981 of Mauritius. The trial Judge concluded that the Appellant did not seek an order for maintenance in her application, and I agree with this finding.

 

214. I dismiss ground four of the grounds of appeal.

 

Ground five of the grounds of appeal

 

215. Counsel for the Appellant claimed that ground five pertains to the relief that should have been granted to the Appellant with respect to the ancillary relief sought in the application.

 

216. I have concluded that the Appellant did not make any request for ancillary relief in their notice in accordance with the Seychelles Matrimonial Causes Act, 1992 and upheld the conclusion of the trial Judge that the applicable law is that of Mauritius.

 

217. Further, I accept the testimony of Narghis Bhundun SC that the Mauritian Court "will never take into account criteria such as duration of the marriage, "passive" and/or indirect contribution to the creation of the assets of the other spouse." According to Narghis Bhundun SC, the Mauritian Court will only determine a spouse's share in a specific asset or all assets if it is satisfied that the spouse made a financial contribution, and that the share will be based on the amount of the financial contribution. In this case, there is no evidence that the Appellant has made any financial contribution towards the creation of any asset.

 

218. It follows, therefore, that the fifth ground of appeal is unfounded and does not require consideration.

 

219. For all the reasons stated above, I accept the conclusion of the trial Judge that the Appellant is not entitled to any relief under the Seychelles Matrimonial Causes Act, 1992 or section 16 (1) of the Divorce and Judicial Separation Act, 1991 of Mauritius.

 

220. I also agree with the conclusion of the trial Judge that there is no matrimonial property under the régime légal de separation de biens according to article 1476 of the Code Napoléon (Amendment No. 2) Act 1980. Under article 1476  of the Code Napoléon (Amendment No. 2) Act 1980 —

"[c]haque époux conserve l’administration, la jouissance et la libre disposition de ses biens personnel, comme s’il n’était pas marié […]." (Emphasis is mine)

221. Ground five stands dismissed.

DECISION

222. I allow ground three of the grounds of appeal.

 

223. I dismiss grounds one, two, four and five of the grounds of appeal.

 

224. In view of the dismissal of grounds one, two, four and five of the grounds of appeal, I uphold the order of the trial Judge that the application for "division of matrimonial property" is dismissed.

 

225. The trial Judge stated at paragraph [118] of the judgment that, "[…] the Respondent by judicial admission undertook to maintain the Petitioner [Appellant] as he is presently doing until the end of his days."

 

226. Each party shall bear her or his own costs.

 

 

____________________

F. Robinson JA

 

I concur                                                           __________________

Dr. L. Tibatemwa-Ekirikubinza JA

 

Andre JA

 

INTRODUCTION

 

227. I have had the benefit of reading the judgment, authored by my Sister, Justice Robinson, with great interest and much appreciation (which I will refer to as the main judgment). I agree with the reasoning and the order given for grounds one, two, four and five. Indeed, the appeal before us has no merit and ought to be dismissed, as correctly found in the main judgment. I however cannot agree with the reasoning and conclusions provided on ground three. I therefore offer my reasoning and restricted to ground three.

 

228. Before addressing ground three, I must briefly state the obvious – that a marriage is a highly personal, private contractual undertaking by parties which encompasses many private transactions ranging from money, raising children, emotional support, and physical care in times of sickness among other exchanges. Our Constitution recognises and protects the family unit as ‘the natural and fundamental element of society and the right of everyone to form a family and undertakes to promote the legal, economic and social protection of the family’.[28]

 

229. This is succinctly summed up in the South African case (albeit in a different context) as follows:[29]

 

“One of the most important invariable consequences of marriage is the reciprocal duty of support. It is an integral part of the marriage contract and has immense value not only to the partners themselves but to their families and also to the broader community. The duty of support gives rise to the special rule that spouses, even those married out of community of property, can bind one another to third parties in relation to the provision of household necessaries which include food, clothing, and medical services. The law sees the spouses as life partners and jointly and severally responsible for the maintenance of their common home. This obligation may not be excluded by antenuptial contract. Another invariable legal consequence of the marriage is the right of both parties to occupy the joint matrimonial home. This obligation is clearly based on the premise that spouses will live together.”

230. But the above emanates from a contractual relationship. A marriage contract forms the basis of the relationship. I emphasise the importance and relevancy of the marriage contract since all other reciprocal duties and obligations emanate from such a contractual arrangement.

 

Consideration of the facts of this case in the light of ground 3

 

231. The material facts are common cause and well canvassed in the main judgment. I only repeat the facts below which I wish to rely on. Marie Noelle Annick Albert (Appellant) and Pierre France Joseph (Respondent) were married on 1 September 1975 in Mauritius under the séparation de biens marital regime. At the time of marriage, it is not disputed that the Appellant’s family were of substantial means compared to the Respondent or his family. Acting on the advice of their parents at the time and the explanation by the marriage officer, the parties chose their marital regime to be the séparation de biens and their marriage subsisted for about forty-three (43) years.

 

232. The Appellant raised five grounds on appeal. Ground three, which I repeat verbatim as raised by Appellant was framed as follows:

 

The learned trial judge erred in law and on the evidence in holding that there was a Mauritian marriage contract between the Appellant and the Respondent.

233. In concluding that there was no Mauritian marriage contract between the parties, the learned Justice relied on the submissions by the parties, particularly the Appellant. There was also reference to the conclusion that the trial Judge erred at paragraph [99] in concluding that there was a Mauritian marriage contract. The relevant passage from the trial court reads as follows:

 

“[99] On the other hand, it was mandatory to have a marriage settlement drawn up before the marriage by a notarial deed as per article 1394 of "Annexe N[30]". Additionally, according to the testimony of Narghis Bhundun SC, section 81 (3) of Ordinance No. 26 of 1890[31], which was in operation at the time of the Parties' marriage, required the civil status officer at the time of the marriage to inquire if the spouses had made any marriage settlement and, if so, the name of the notary who prepared it. Any statement made by the spouses must be recorded in the Act of the Civil Status. The marriage settlement became effective and enforceable starting from the date of the celebration of the marriage, in accordance with "Annexe N."” [own emphasis]

 

234. As such, a summary of the Appellant’s submissions on this point requires consideration. The Appellant submitted many authorities including Sullivan v/s Sullivan [1962] SLR 318 where it was established that French jurisprudence has adopted the principle that in cases of marriages contracted by French citizens abroad or by foreigners in France, the regime applicable to spouses married without a marriage settlement should be that which the spouses had intended to adopt (own emphasis). I come back to this point later.

 

235. Counsel for the Appellant proposed to apply the same principle in the present matter. The submissions went on to state that since there was no express declaration by the spouses as to the matrimonial regime, the principle established in Sullivan v Sullivan should apply. Counsel invited the court to establish the common intention of the parties taking into account all the facts and relevant circumstances. Lastly, there is a blanket challenge by the Appellant on how the trial court dealt with the circumstances surrounding the marriage by the parties and the inference made that they intended Mauritian law to apply.

 

236. Counsel for the Respondent submitted that the assessment by the trial court of the surrounding circumstances and the conclusions reached were correct. In the submissions, she argued that the parties had expressly chosen the régime légale de separation de biens and that there was no need to search for any tacit or unspoken manifestation of the intention. In line with the evidence of the expert witness, Counsel further stated that the Parties marital property regime was set out under the Status of Married Women Ordinance 50 of 1949, amended in 1980 to be régime légale de separation de biens. All this evidence was canvassed and addressed in the main judgment.

 

237. I do not understand the submissions by the Appellant that both parties never intended for Mauritian law to apply. All the evidence as addressed by the trial court points to the fact that the parties intended for Mauritian law to apply. If there was no intention for Mauritian law to apply, it becomes further uncertain as to which legal framework the parties intended to apply as parties cannot be married in a legal vacuum. The parties were married in terms of Mauritian law and the Status of Married Women Ordinance 50 of 1949 applied. A repeat of the relevant passages of the trial court at paras 98 citing the Supreme Court judgment paragraphs [108] to [115] identifies this clear intention.

 

238. The expert opinion by Narghis Bundhun SC shows that the document format concerning the Marriage Certificate was repealed due to the amendments made to the Civil Status Act by the Civil Status Amendment Act, Act No. 8 of 1997. Following the 1997 amendments to the Civil Status Act, the "Certified Extract of a Marriage Entry (Pursuant to the Civil Status Act 1981)”  replaced the previous document format. According to the “Marginal Entries” column in the Marriage Certificate, the following entry was recorded, “[t]he parties on being asked declare to me that they wish to be governed by the Status of Married Woman Ordinance 50 of 1949”. It was also mandatory for a Civil Status Officer, at the time of celebrating the marriage, to inquire about the matrimonial regime that would govern the spouses' assets after their marriage. This inquiry was undertaken and was not challenged by the Appellant.

 

239. Furthermore and as submitted by Narghis Bundhun SC, if parties at any other given moment after the marriage in Mauritius wished to change their marital property regime, they could have done so when the marriage certificate was amended to reflect the changes in law. Unfortunately, this change or an expression of it was never done. In fact, if the submissions by the Appellant that they got married in a haste and did not fully understand the implications of their marital regime, when the time to amend the marital regime in terms of the amendments came, the parties could have reflected and raise concern. This simply never happened.

 

240. As correctly pointed out in the main judgment, when summarising the evidence of the Appellant:

 

“[12] During the civil ceremony, the Civil Status Officer asked them under which ʺcontractʺ they wanted to marry, and they both ʺdid not really knowʺ. She asked her father, "What is that?" he replied that he did not know and left the decision-making to her. Afterwards, her father mentioned the separation de biens, which they went along with. They followed the advice of her father. They were unaware of the contents of the document they signed. They had never spoken about the matrimonial regime which would govern their marriage. She did not deliberately decide to marry under the separation de biens before their marriage. After their marriage, she did not consider the separation de biens.”

241. If there was no intention to marry under the separation de biens, why was this not raised during the subsistence of the marriage, including when amendments to the marriage certificate were done?

 

242. This, in my view, is a marriage contract that formed the basis of the forty-three-year marriage between the parties. In forming the various accepted family units, individuals like the parties in this case had the freedom to choose and structure their affairs, including their marital property regime.

 

243. But there is another argument – a marriage certificate is prima facie proof of the marriage contract. Its mere production is sufficient to establish the existence of the marriage, unless the certificate itself is challenged on some other ground e.g. fraud. All comments endorsed on a marriage certificate must be accepted as true, unless challenged for some reason. There was no such challenge made.

 

244. My difficulty with the conclusions by the learned Justice on this ground is that it has wider implications, including the basis of the rest of the main judgment. Once there is a finding that no such marriage contract existed in terms of Mauritian law, there is no basis even for the other grounds claimed by the Appellant. All the rights, duties and obligations arising because of the marriage between the parties arose due to their marriage contract under Mauritian law – to which a marriage certificate is evidence of such a contract. Marriage, like any contract is based on the intention of the parties, and our duty as a Court of Appeal is to simply give effect to the intention of the parties. It is not the duty of the Court to enter into a marriage on behalf of the parties.

 

245. A perusal of expert evidence by Narghis Bundhun SC which the learned Justice has summarised, clearly shows that the parties married under the separation de biens. Spouses had the option to make a marriage settlement /”un contrat de marriage” between them drawn up before a notary or be governed by the legal system of community of goods and property or the system of settlement of dowry.

 

246. The intention of the parties was clear – separation of goods. The learned Justice equated the lack of the contract drawn by a notary as the absence of a marriage contract. Marriage is by nature a contract sui generis. Before entering the marriage, the marriage officer explained what each marital regime meant. In terms of the régime légale de separation de biens under the law of Mauritius, each party retains his or her separate property during the marriage, and on dissolution thereof, neither party has a claim against the property of the other party.

 

247. Even on the authorities relied by the Appellant, particularly Sullivan v Sullivan [supra], the common intention of the parties demonstrates a marriage contract under the régime légale de separation de biens. There was never any reference to Seychelles, French or English legal framework. It was all about Mauritian law.

 

248. The evidence of the Respondent, which read together with the Appellant clearly shows the intention. I repeat only for emphasis what the Learned Justice has already captured from the trial court judgment –

 

[110]   When asked whether they both were clear as to what this meant, the Respondent said:

"But they made it very clear, they explained it to us. Séparation des biens … means what’s hers before remains hers and what was mine remains mine. And that was very clear." (page 57 of 63, transcript of proceedings dated 22 July 2019 at 2 pm)

[111]   And regarding assets acquired during the marriage, he said:

"Well if she brought it in her name, it would be hers. If I bought it on my name it would be mine" (page 58 of 63, also see page 42 of 63 transcript of proceedings dated 22 July 2019 at 2 pm).

249. This clearly shows that parties understood the legal implications of their choice of marriage under Mauritian law.

 

250. I also remark that a proper analysis of the applicable legal framework even when ascertaining whether there is a conflict of laws does not start with French or English law approaches or what ought to be adopted or applied. It commences with the Constitution of the Republic of Seychelles which establishes Seychelles as a democratic sovereign nation, governed by its own laws. Judgments including of the Seychelles Court of Appeal that predate the Constitution must be read, analysed and applied through the current Constitution. There exists no other legal framework that is superior to the Constitution of Seychelles.

 

Conclusion

 

251. For the reasons stated above, I would dismiss the appeal on ground three as well.

 

Signed, dated and delivered at Ile du port on 25 August 2023.

 

 

 

 

 

 

 

 

 

 

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[1] See footnote 5, infra

[2] See footnote 9, infra

[3] "The Status of Married Women Ordinance, 1949, Ordinance No. 50 of 1949": "Annexe J" to the Expert Opinion, P22, is hereinafter referred to as "The Status of Married Women Ordinance 50 of 1949"

 

[4] Section 2 of the Ordinance stipulated —

"(1) Where the parties intending to marry shall declare to the Civil Status Officer at the time of the marriage that they wish to be governed by the provisions of this Ordinance the Civil Status Officer shall make a marginal entry to that effect in the act of marriage and the provisions of this Ordinance shall thereupon apply to such parties.

(2) Nothwithstanding anything to the contrary in any enactment a married woman to whom the provisions of this Ordinance shall apply shall retain her full capacity to deal with her property both movable and immovable and to act in all matters whatsoever as if she were not married.

 

[5] a certified true copy of the original act of marriage titled, ʺ1975 Marriage in the District of Plaines Wilhems in the island of Mauritius: ʺAnnexe Gʺ to the Expert Opinion P22, is hereinafter referred to as the "Marriage Certificate"

 

[6] "Code Napoléon (Amendment No. 2) Act 1980 Act No. 26 of 1980": "Annexe L" to the Expert Opinion P22, is hereinafter referred to as the "Code Napoléon (Amendment No. 2) Act 1980"

 

[7] A ʺCertified Extract of a Marriage Entry (Pursuant to the Civil Status Act 1981)ʺ issued on 16 April 2019 by the Central Civil Status: "Annexe F" to the Expert Opinion P22, hereinafter referred to as the ʺParties certified extract of a marriage entry"

 

[8] ʺEXPÉDITION 2007 Les 4 et 6 août Adjonction de Madame Marie Noelle Annick Albert, née Giraud comme associé de la société civile dénommée ʺSOCIETE GBV DIX HUITʺ; ʺAnnexe Oʺ to the Expert Opinion P22, hereinafter referred to as the ʺExpédition 2007ʺ

 

[9] (″[d]éclare ladite Dame Albert qu’elle même et son sus dit époux sont mariés en premières et uniques noces sous le régime légal de la separation de biens, le premier septembre de l'an mil neuf cent  No. 281 de 1975 du bureau d’état civil de Curepipe, quartier des Plaines Willems.″)

 

[10] a certified true copy of a document from the Registrar of Companies of Mauritius acknowledging receipt of the Deed ″Delegation de pouvoir″ dated 26 March 2018, of the Civil Partnership ″Société GBV Dix Huit″ together with the ″Expediton 2018 Le 26 Mars… DÉLÉGATION DE POUVOIRS DU GÉRANT de la société civile dénommée ″Société GBV Dix Huit″; ʺAnnexe Sʺ to the Expert Opinion P22.

 

[11] (″[d]éclare ladite Dame Albert qu’elle même et son sus dit époux sont mariés en premières et uniques noces sous le regime légal de la separation de biens, le premier septembre de l’an mil neuf cent  No. 281 de 1975 du bureau d’état civil de Curepipe, quartier des Plaines Willems.)

[12] Sections 1, 2 and 3 of The Status of Married Women (Extension) Act 1979 Act No. 31 of 1979: ʺAnnexe Kʺ to the Expert Opinion P22, hereinafter referred to as ʺThe Status of Married Women (Extension) Act 1979ʺ

 

[13] Section 16 (1) stipulates ―

″[o]n granting a decree the Court may order a party to transfer to the other party such property as may be specified in the order within such time and on such conditions as the Court think fit″.

 

[14] (28 August 2015)

[15] "[t]outes conventions matrimoniales seront rédigées avant le marriage, par acte notaire " — Le Code Civil De Maurice (avec les amendements au 31 décembre 1975), ʺAnnexe Mʺ to the Expert Opinion P22, which was amended by "Annexe N", the Code Napoléon (Amendment No. 2) Act 1980

 

[16] An Ordinance to consolidate and amend the law relating to the Civil Status, "Annexe M" to the Expert Opinion P22

[17] See paragraph [97] hereof for the extract from Intelvision Network Ltd & Ors 2015 SCA [supra]

[18] Volume 1, 10th Edition, Dicey and Morris "The Conflict of Laws"

[19] Ibid.,

[20] Ibid.,

[21] Ibid.,

[22] Encyclopédie Dalloz, Droit International, Tome II, F-Z Verbo, Régime Matrimoniaux at notes 18, 22-35, 40-41

 

[23] See notes 40-41 of Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux at paragraph [185] hereof

 

[24] These notes from Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux will be considered during my analysis.

[25] Ibid.,

[26] "202. Si les deux époux ont la même nationalité française ou étrangère on admettra volontiers qu’ils ont voulu adopté la régle de droit commun prévu par leur nationalité. Il en sera surtout ainsi lorsque les circonstances montrent qu’ils n’ont pas rompu toute attache avec leur pays d’origine; par exemple ils y sont retournés pour s’y marier, ou bien ils ont conservé des intérêts dans leur pays, ou bien ils ont manifesté l’intention d’y revenir plus tard.

 

203. Il n’existe cependant aucune présomption à cet égard st les juges du fond peuvent écarté la loi nationale commune des époux si l'établissement de leur premier domicile matrimoniale à l’étranger ou toute autre circonstance pousse à croire qu’ils ont entendu adopted un autre régime…

 

204. Si les deux époux sont de nationalité différante, la plupart des decisions se prononcent en faveur de la loi de l’État oŭ ils établissent leur premier domicile matrimonial…

 

206. Pour rechercher l’intention des parties, les juges du fond peuvent retenir des cirrconstances antérieures au marriage comme le lieu de residence des époux, notamment du mari…

 

207. …ou des circonstances concomitants au marriage comme la forme de ce marriage, l’autorité qui la célèbre, ou même le lieu de celebration…

 

208. …ou même des circonstances postérieures au marriage qui confirment quelle a pu être l’intention des époux au moment de la celebration du marriage : attitude dans la gestion des biens, demande de separation de biens, dispositions testamentaires, etc…".

[27] Dalloz Répertoire de Droit International Tome II Factoring-Zone Contiguë, Verbo, Régimes Matrimoniaux

[28] The Constitution of the Republic of Seychelles, Art 32(1).

[29] Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) para 65.

[30] "[t]outes conventions matrimoniales seront rédigées avant le marriage, par acte notaire " — Le Code Civil De Maurice (avec les amendements au 31 décembre 1975), ʺAnnexe Nʺ to the Expert Opinion P22, which was amended by "Annexe N", the Code Napoléon (Amendment No. 2) Act 1980.

[31] An Ordinance to consolidate and amend the law relating to the Civil Status, "Annexe M" to the Expert Opinion P22