Sherry-Ann McGregor, Contributor
MCGREGOR
IT IS amazing how many persons have gone through divorces without understanding the process or what rights they might have had to participate in the process.
One commonly held view is that the respondent to a divorce has to sign a document in order to bring the marriage to an end. This is not so!
A divorce begins by filing a petition, which must be signed by the petitioner (that is, the person who is applying for the divorce). Once the petition is filed, a notice to appear will be signed by the registrar of the Supreme Court directing the respondent (the other party) to enter an appearance within eight (8) days after the petition and notice to appear have been served.
The respondent does not need to sign the petition or any other document for that matter. He or she does not even need to enter an appearance for the petition to proceed. In fact, things may flow a lot smoother if the respondent decides not to participate. With an uncontested divorce, the entire process may be completed within 6 - 9 months.
However, a respondent is entitled to file an answer to the petition in which case a contested petition for divorce will ensue. Cases such as these are rare in Jamaica, and of this number I have only located one written Judgement - Muir v Muir.
In this case, the husband petitioned for divorce after more than 45 years of marriage. The wife filed an answer in which she contended that the marriage had not broken down irretrievably and that they had not been separated for 12 months, as required by law.
Every detail of the alleged separation came under review. The husband's removal from the matrimonial bedroom into a room, which had been occupied by the couple's daughter, the frequency (or lack thereof) of sexual relations and the first time he filed a petition for divorce. These assertions were challenged by evidence that the couple still dined and attended functions together. The wife had purchased the husband's supply of Viagra and participated in his experimental use of the drug. He covered their joint household expenses as well as her credit card bill.
After hearing all the evidence, the learned Judge made it clear that what was important was whether the husband had formed the intention to separate from his wife and acted upon that intention. In the end, the reason for the separation and the fact that the wife did not accept it and continued to behave as if the marriage were still sound were irrelevant. The decree nisi was granted because the requisite legal bases had been satisfied and proven by the husband's removal from the matrimonial bedroom and the filing of the first petition for divorce.
In practice, the right to challenge divorce petitions is certainly not abused. For the most part, if there is not a mutual decision to separate, one party usually accepts the decision of the other to bring the relationship to an end. But, for those who are prepared to fight, the right to challenge exists.
Sherry-Ann McGregor is a partner and mediator at the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback and comments to lawsofeve@yahoo.com.
