MCGREGOR
UNLIKE THE popular song, a marriage does not have a 'licence that expires every two years', as there is no automatic termination.
Deliberate steps must be taken to bring it to an end in accordance with the procedure outlined in the Matrimonial Causes Act and Rules.
Before an application can be made for a divorce, the parties must have been married for at least two years and have also lived separate and apart for a continuous period of 12 months immediately preceding the filing of the application. The application must be made using a Petition for Dissolution of the marriage.
The 12-month period of separation preceding the application can actually begin shortly after marriage, because there is no requirement that the marriage must be two years old before a couple can separate.
Interestingly, parties can be deemed to be separated even though they continue to reside in the same home or even in the same room. It is only necessary to ensure that persons who are contemplating divorce ensure that as far as possible they live completely separate lives. For example, neither party should cook, wash nor have conjugal relations with the other as they would have done before separation.
TWO STAGES
There are two stages involved in the process. The first is the application for a decree nisi. The documents must be filed in the Supreme Court. The Registrar of the Supreme Court will thereafter sign a notice to appear, which is affixed to the petition, after which it can be served on the other party. The party applying for the divorce is called the petitioner and the other party is called the respondent.
It should be noted that the petition cannot be served by the petitioner. It must be served by a process server or by a person who knows the respondent and knows the respondent to be the husband or wife of the petitioner.
If a process server serves the document, then the petitioner must either accompany the process server and point out the respondent to the process server, or provide the process server with a recent photograph of the respondent. The importance of this is that whoever serves the petition ought to have known the respondent or has to give sufficient evidence as to how he was able to identify the respondent.
At the hearing of the decree nisi, the petitioner will have to attend court to give evidence about the marriage. The evidence will usually accord with the facts set out in the petition. If the petitioner resides outside of Jamaica then some special reason must be given if he or she does not wish to or is unable to attend court in person. A separate application will have to be made to the court seeking permission to obtain the decree nisi in the absence of the petitioner.
After the grant of the decree nisi, it is important to note that the divorce is not final. Six weeks after the date on which the decree nisi is granted an application for a decree absolute will have to be made. The petitioner will not need to attend court for the decree absolute; but once this is granted the divorce will be final.
Sherry-Ann McGregor is partner/mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback/questions to: lawsofeve@yahoo.com.
