Sat | Nov 18, 2017

Laws of Eve | Divorce by consent

Published:Monday | November 13, 2017 | 12:00 AM

Readers of this column probably wonder why I write about family law more often than every other area.

Well, apart from handling more family matters than I ever thought I would, I genuinely believe that the resolution of family matters can help to improve economic outcomes in the country. The simple fact is that employees who are facing challenges at home will have difficulties focusing on their work.

In most of the cases, by the time a party provides instructions to commence divorce proceedings, the marriage is truly at an end. And in most of those cases, both parties want to dissolve the marriage. Sometimes one of those parties has already made plans to remarry, and there is deep anxiety for freedom on both sides.

Based on the provisions of the Matrimonial Causes Act, once the parties are able to show that they were married for at least two years, separated for at least one, and the marriage has broken down irretrievably, divorce proceedings become nothing more than an administrative issue.

In other words, in the same way that parties are able to enter into a contract to marry, should they be allowed to enter into a contract to bring that marriage to an end?

Currently, only a Supreme Court judge or master in Jamaica can grant a divorce decree. For that reason, every divorce application must go before a judge or master for consideration, and before the documents are even seen by the judge or master, an intense process of vetting is undertaken. Where an application for decree nisi or decree absolute is refused, it is usually not related to the substance of the claim, namely, questions as to the length of the marriage, period of separation, or proof that the marriage has broken down.

Instead, the issues are invariably concerned with typographical errors or procedural matters. I am seriously proposing that our legislators consider whether couples who are involved in uncontested divorce proceedings should be given the opportunity to get divorced by consent. The idea is not a new one, because it was the subject of an article in Modern Law Review more than 50 years ago on March 30, 1967; and countries such as Ireland and France now provide it as an option.

 

FOCUS ON FINDING SOLUTIONS

 

While I appreciate that safeguards would need to be put in place to prevent abuse, if the legislators introduce divorce by consent, we need to focus on finding solutions to the problems, rather than on the problems themselves. Below are some possible safeguards to ensure that the parties' consent is effective in bringing an end to all matrimonial issues where divorce is granted by consent:

- The marriage must either have been short, for example, less than five years or, in the case of longer marriages, there must be no children, or only adult children who are not in need of care.

- The parties must have been separated for a longer period than one year. The court may require both parties to appear at court before the registrar with proper identifications to sign the consent order.

- The parties must settle all matrimonial issues, including maintenance and property division, at the time they are bringing the marriage to an end.

The public blame game as to who is responsible for the delays that prevent parties from completing divorces within five to six months needs to end. Rather than continuing the failed experiment that paper divorces have proven to be, the players within the justice system need to carefully assess the problem and determine what steps need to be urgently taken so that frustrated, estranged couples can move on with their lives.

Does divorce by consent present one possible solution to some of the problems in divorce matters? I say "Yes".

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