Tue | Sep 26, 2017

Laws of Eve | Dealing with divorce

Published:Monday | September 26, 2016 | 9:00 AM

A reader asked for answers to several questions about getting divorced. I have set out the questions and the answers below.

Q: Will a divorce be granted if the parties are separated and still both indulge in sexual activities?

A: When the word 'separation' is used in the context of divorces, it does not mean that the parties have to reside in two different homes and, according to Section 6 (2) of the Matrimonial Causes Act, "The parties to a marriage may be held to have separated and have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other."

The parties must be separated for at least 12 months in order to get divorced, but Section 7 of the act states that "... no account shall be taken of any one period (not exceeding three months) during which the parties resumed cohabitation with a view to reconciliation".

It is, therefore, possible that parties could engage in sexual intercourse during the period of their separation and still remain separated. However, the specific facts of each case must be explored to ascertain whether the resulting interruption of the separation is substantial. (The case of Heron-Muir v Heron-Muir FD00144 of 2004 judgment delivered on October 21, 2005 is an example of a case in which the issues surrounding separation were explored).

Q: If both parties attended counselling and one party states that he is not interested in reconciling, can they still get a divorced?

A:Yes. Section 6 (1) of the act states that,

"The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties." The parties do not have to agree to get divorced.

However, sections 11 and 12 of the act state that the court shall give regard to the possibility of reconciliation, even if only one party expresses the desire to reconcile. In that case, the divorce proceedings may be adjourned while the judge interviews the parties, allows them to speak or nominates a counsellor to assist the parties.

Q: Should the husband still take care of the wife even though they are separated?

A:The Maintenance Act provides that (during the marriage) each spouse, in so far as he or she is capable, has the obligation to maintain the other to the extent necessary to enable that spouse to meet her or his reasonable needs. Pursuant to Section 23 of the Matrimonial Causes Act, applications for spousal maintenance while divorce proceedings are pending and even after they have ended.

Q: After receiving the petition, does the respondent have a right to be heard?

A:In divorce proceedings, a respondent may trigger a hearing by filing an Answer to the Petition. Once that Answer is filed, the court will schedule a Case Management Conference, after which the divorce proceedings will be heard in open court.

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