Sherry-Ann McGregor

If the proposed new Matrimonial Proceedings Rules take effect in its present form, a hassle-free divorce may become a reality.

These rules, which are intended to take the place of the Matrimonial Causes Rules, are intended to take effect today. Perhaps the most interesting and revolutionary feature will be the introduction of default proceedings.

For the most part, divorce proceedings will proceed in the same manner as they did under the old rules. In other words, a petition will be filed and served on the respondent, who will be entitled to acknowledge service within 14 days of being served. The respondent will also have the option of filing an answer to the petition within 28 days after receiving it.

The interesting change will occur after the time limited for acknowledging service or filing an answer has expired. Under the old rules, the petitioner would simply attend court and give evidence under oath in order for the decree nisi to be granted. But now, the petitioner may be able to avoid having to attend court at all.

How will this work? The petitioner will apply to the court for an order to proceed in default and dispense with a hearing in open court. This application must be supported by an affidavit, which must provide evidence of:

the marriage (i.e. the original marriage certificate)

service of the petition on the respondent, who failed to acknowledge service or file an answer

the fact that there are no relevant children of the marriage or if there are children of the marriage that suitable arrangements have been made for their care, maintenance and upbringing

the circumstances under which the marriage broke down

unsuccessful attempts at reconciliation

service of the application on the respondent if he or she had acknowledged service of the petition

The judge may consider the application in the absence of the parties and grant or refuse the decree nisi. Alternatively, he may schedule a date for the petition to be heard or issue directions for the future conduct of the proceedings.

If this aspect of the new rules operates in the manner in which it is obviously intended to, uncontested divorces ought to proceed more expeditiously. However, this will only become a reality if a proper system is in place. The staff at the registry of the Supreme Court must be sensitised to the new rules and the procedure for handling applications to dispense with a hearing in open court. In addition, applications of this nature must be brought to the attention of a judge within the shortest possible time.

When change is on the horizon, it is always expected that there will be detractors; and these new rules are no exception. The proponents say that it was never necessary for the petitioner to attend court, so nothing will be lost by instituting default proceedings. For the opponents, it seems that the sanctity of marriage will be sacrificed at the altar of the "quickie Mexican divorce". Do you agree?

Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.