National Assembly - Debate on Civil Code continues |19 July 2018

In their second preliminary sitting yesterday before they start the real debate on the Seychelles Civil Code Bill 2018, members of the National Assembly accompanied by their foreign legal representatives, again went through the various Articles of the proposed Bill, fine-tuning it before the final decision.

As stated by Mr Bernard Georges on Tuesday, 90% of the more than a thousand pages Bill still remains untouched as they are still relevant to today’s realities.

Therefore the focus of the debates, clarifications and amendments were mainly on the 10% part of it.

The pattern of work was that the MNAs asked Professor Tony Angelo, who also drafted the Bill, to explain to them the reasoning behind the various Articles, and indicate to them the parts that have been changed or not and also explain the context.

In his reply, for example, to Articles 1 to 14, which he started off with, Professor Angelo pointed out they are basically re-instatement of existing rules. But there are a number of vacant provisions and there is not a very good order of those provisions.

“I think the main thing to say about 1-14 are first, the Code has been set out as a contemporary Act. In other words it starts this is the Civil Code of Seychelles which is not in the present and then the standard pattern this Act binds the state and a very few key definitions. There is some change in Article 7 that corresponds to the current Article 5 which says no decision of a Seychelles court absolutely binds another court,” he said.

Professor Angelo was told that the practice in Seychelles is that over the period since independence, there is a pattern within the Supreme Court where judgements follow prior to decisions of the Court of Appeal.

Professor Angelo also mentioned other inconsistencies or amendments in other Articles as he went along.

The pertinent changes being debated on are Equalising of the rights of all children where the rationale behind it is the Civil Code reflects its 19th century origins in the French Code of 1804. It still distinguishes illegitimate from legitimate children and restricts the rights of adulterine children. Therefore the new Bill proposes the status of legitimacy and illegitimacy will be abolished to comply with the equality of rights provisions in the Constitution.

The other one is Sharing of Property in en ménage relationships. For many years, the courts and the Seychelles community have struggled with the property consequences of the termination of en ménage relationships. The situation remains legally confused.

The Courts struggle to do justice to each of the partners because the law focuses on who is registered as the owner of the property, and takes no good account of other types of interests which arise from the relationship.

The proposal is that where the en ménage relationship has been stable and existed for at least 7 years, the property of the concubines will be shared equally except in exceptional circumstances.

For relationships of fewer than 7 years, the court will have a discretion to make appropriate property orders. Where an en ménage relationship ends by the death of one of the partners, the new Code proposes a sharing arrangement.

The rights of co-owners is the rationale behind the Civil Code that states the rights of co-owners are held by a fiduciary. This law has caused much confusion. The purpose was to avoid the extensive subdivision of land. The law has not achieved its purpose. So the proposal is aimed at simplifying the law on co-ownership, a fiduciary will be used only where the co-owners cannot agree on what to do with the property.

Testamentary Freedom is the ability to dispose freely of property on death. The rationale behind is the Civil Code reflects the property ideas of the rural community of France 200 years ago. The Constitution of Seychelles protects property rights.

The constitutional law and the social situation of Seychelles warrant change to the succession laws. Most people in Seychelles die without writing a will. Those who choose to write a will may not dispose of more than half their property and, depending on the members of the close family, may leave only one quarter of their property by will.

It has been proposed that the current situation, whereby a person can deal with the property which is in their name while alive, will be extended until the situation on death.

There is also a concern that the grant of this freedom might result in the interests of dependents not being met. The new Code addresses this by specifically providing for the protection for those who were dependent on the deceased at the time of death.

On the issue of Land use matters, the law on ‘droit de superficie’, encroachment and ‘troubles de voisinage’ has been developed by the Courts of Seychelles. The rules are found in the judgments of the Courts. 

The ‘droit de superficie’ arises when the owner of land allows or permits another person to build a house on the land.  An encroachment provides for the situation where a building extends without permission onto the land of another person.  ‘Troubles de voisinage’ regulates the behaviour of neighbours – a person must not use their property to harm others. The use of property must not exceed the normal patterns of use in the neighbourhood. The new proposal is that the rules established by court decisions will be formally confirmed by incorporation in the new Code.