Sun | Sep 24, 2017

Laws of Eve | Unhappily ever after

Published:Monday | May 8, 2017 | 5:00 AM

We all know about the challenges involved in getting divorced in Jamaica, which largely surround the court delays, and we live in constant hope that the authorities will find a way to fix the problems. However, sometimes an examination of someone else's experience in another country makes us see the silver lining around the cloud.

In Jamaica, you can get divorced if you have been married for two years, separated for at least one year and the marriage has broken down irretrievably. It is not necessary to prove that either party caused the breakdown of the marriage, so divorce is not based on fault.

In England, you must have been married for at least one year before you can get divorced on the grounds that the marriage has irretrievably broken down, if you can prove:

* Adultery

* Unreasonable behaviour

* Desertion for two years

* Two years' separation if the parties agree to get divorced

* Five years' separation if the divorce is contested

Divorce is therefore still fault-based in England, unless there is proof that the parties had been separated for two or five years, depending on whether the divorce is being challenged or not.

According to media reports, Tini Owens commenced proceedings in England to end what she described as a "loveless and desperately unhappy" marriage to Hugh Owens. She alleged unreasonable behaviour on Hugh's part, but Hugh opposed the claim and said that they still had "few years" to enjoy. At the time of their separation, Tini was 64 years old and Hugh was 75 years old and they had been married for 37 years.

What constituted the unreasonable behaviour that compelled Tini to divorce Hugh, the multimillionaire retired mushroom farmer? Tini's complaint was that Hugh continued to berate her about an affair that she had in 2012. After the affair ended, Tini said that Hugh had, among other things, criticised her in front of the housekeeper and make "stinging remarks" during a meal with friends.

The trial judge ruled that the marriage had not broken down irretrievably despite the fact that Tini had an affair. In fact, the judge described Tini's allegations as being exaggerated and flimsy, so the facts were found to be insufficient to support a divorce.

 

APPEAL DISMISSED

 

Tini's appeal against that decision was heard on Valentine's Day and, on March 24, 2017, the Court of Appeal dismissed the appeal, leaving Tini with no choice but to remain married to Hugh, although they were already living in separate homes, until she is able to satisfy the five-year separation period to complete a contested divorce.

In delivering the judgment, the Court of Appeal held that they were powerless to reverse the judge's ruling because, "Parliament has decreed that it is not grounds for divorce that you find yourself in a wretchedly unhappy marriage." In other words, because no legislation has yet been enacted in England in relation to no-fault divorce, the court could not take it upon itself to grant divorces where fault is not proven.

While I am not condoning adultery, or encouraging divorce, the silver lining for Jamaican litigants is that our laws changed to allow for no-fault divorces from as far back as 1989.

- 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.