Wed | Aug 16, 2017

Am I married or divorced?

Published:Monday | February 1, 2016 | 2:00 AM

Am I married or divorced?

An article with the title, 'Husband secretly divorces wife after 20 years' is unlikely to grab most peoples' attention since it is not unknown for one party to a marriage to get a 'quickie' divorce without ever serving divorce papers on the other party. It is the timing of the divorce the article described (which I will tell you below) that is more shocking.

On January 12, 2009, I published an article titled, 'Divorce order set aside'. In that article, I reviewed the Supreme Court judgment in the case of Boothe v Boothe in which Mr Boothe obtained a decree absolute in December 2004, married someone new and then the first Mrs Boothe made an application to the court to set aside the decree absolute as being a nullity. She argued that she had entered an appearance when the petition was served on her, but was never served with an application by Mr Boothe to make the decree nisi absolute.

The judge in that case reviewed the Matrimonial Causes Rules and found that the failure by Mr Boothe to serve the application for decree absolute on his former wife caused the decree absolute to be void. The judge said that this also meant that his subsequent marriage was also void.

SECRET DIVORCE

In the 'secret divorce' article, as reported in several articles on the Internet, the situation was much worse than in Boothe's case. Cristina and Gabriel Villa got married in New York in 1994. After four months of marriage, Gabriel secretly went to the Dominican Republic, although he never lived there, and divorced Cristina without her knowledge or consent on grounds of 'incompatibility of temperament'.

Gabriel apparently returned to Cristina in New York after his clandestine trip to the Dominican Republic and the 'marriage' continued for 20 years. Cristina, who is now 59 years old, has sued Gabriel, who is now 90 years old, to nullify the divorce so that she can preserve her interest in matrimonial property, including the condo they occupy that is worth about US$1.4 million.

If Cristina's application was heard in the Jamaican Court, it is likely that the divorce wouldn't have been nullified based on the provisions of section 24 of the Matrimonial Causes Act. Under that section, "a dissolution or nullity of marriage effected in accordance with the laws of a foreign country will ... be recognised as valid in Jamaica", but there are several provisos, with one alternative being a requirement that one party should have been a national, domiciled or ordinarily resident in the foreign country. At least one proviso must be satisfied.

MEXICAN DIVORCE

In another Jamaican case - McCalla v McCalla (decided on September 26, 2006) - involving a question as to whether a Mexican divorce was valid, the judge ruled that s. 24 (4) of the act prevented the Supreme Court from recognising a foreign decree in circumstances in which the wife was not notified of the proceedings, and had not been given an opportunity to be heard. This ruling was based on the court's acceptance of the fact that the wife had never been served with any documents filed in the Mexican court before the divorce decree was granted.

Even if the divorce was upheld in Jamaica (and that would be unlikely), Gabriel would have become Cristina's common law spouse, subject to the Property (Rights of Spouses) and Maintenance Acts, with the same rights and obligations as if they had been married. It is left to be seen what the ruling of the court in New York will be.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.