McGregor

The new Matrimonial Proceedings Rules, which were published in the Gazette on August 18, 2006, took effect on September 18, 2006. However, copies of the new rules and the accompanying forms were not ready for distribution at the start of the new Court Term.

The transition

One question which immediately arises is whether the new rules affect matrimonial proceedings which commenced prior to September 18. The transitional provisions state that the Matrimonial Causes Rules 1998 will continue to apply to all petitions or other applications which were filed under those rules until the start of the Easter Term 2007 (that is, January 8, 2007).

As at January 8, 1997, the new rules will apply to all matrimonial proceedings. Matrimonial proceedings are defined as

Proceedings for dissolution of marriage, nullity of marriage, presumption of death and dissolution of marriage.

Applications for custody, maintenance, education and access to children.

Proceedings for division of property.

All other proceedings authorised by the Matrimonial Causes Act and any other act which authorises the pursuit of a matrimonial cause.

New provisions

The inclusion of proceedings for division of property in the Matrimonial Proceedings Rules has raised some concern, because the Matrimonial Causes Act makes no reference to such applications. Does this mean that an amendment to the Matrimonial Causes Act is being contemplated, or does it mean that applications under the Property (Rights of Spouses) Act are subject to these new rules?

Significant aspects

One of the most significant aspects of the new rules is the ability to obtain decrees nisi and absolute on paper (that is, without the need for a hearing or attendance at court). This was not possible under the Matrimonial Causes Rules, which required the petitioner to give evidence in open court at the hearing of the decree nisi unless special permission was granted by the judge for affidavit evidence to be accepted.

Another feature of the new rules is that they do not contain the detailed provisions in respect of applications for ancillary relief, such as maintenance and custody, as contained in the Matrimonial Causes Rules. This is because sections 21, 25 and 28 of the Matrimonial Causes Act, which referred to such applications, were deleted when the Maintenance Act, 2005 came into effect. As a consequence, where no petition for dissolution of marriage has been filed, applications for maintenance of spouses and children will have to be made pursuant to the Maintenance Act.

Adapting to the new procedure will require patience as there are bound to be teething pains as we attempt to conquer this new learning curve.

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