Sun | Aug 25, 2019

Laws of Eve | What does no-fault divorce really mean

Published:Monday | December 10, 2018 | 12:00 AM

Quite often, we focus on the things that are wrong with our justice system and our laws, with little appreciation for the progress we have made. In many instances, that progress puts us ahead of some developed countries, but that fact is usually dulled by complaints about the reality that the "follow-through" is lacking.

Jamaica's divorce laws provide a good example of progress. In 1989, the Matrimonial Causes Act was amended so that there was no longer a need to attribute fault for the breakdown of a marriage in order to get divorced. In other words, before 1989, a petitioner for divorce had to prove grounds such as adultery or desertion to commence divorce proceedings. In cases of adultery, the third party involved in the adulterous affair may also have to be joined in those proceedings, and what this meant was that intense litigation ensued and the acrimony between the parties also increased.

In the midst of those divorce proceedings would be the hapless victims, the children, whose lives remained in limbo while their parents fought over an issue about which they were not responsible.

The introduction of no-fault divorces made it possible for a marriage to come to an end without one spouse having to prove that the other was at fault. Phrases such as "irreconcilable differences" or "irretrievable breakdown" took the pace of "fault". In the Jamaican context, the parties must prove that they were married for at least two years, separated for at least one year prior to the filing of the divorce petition and that the marriage has broken down irretrievably with no prospects for reconciliation.

What is true is that, even within that system of divorce, some spouses detail the reasons for separation and include allegations of adultery and abuse, which provoke answers denying those allegations and sometimes the contention that the marriage had not broken down irretrievably. The filing of answers result in contested divorce hearing, which can usually be avoided.

The question that I ponder, when there is no contest that there has been separation for at least one year in a marriage that is over two years old, is why there is any need for a contested hearing when one spouse states that the marriage is at an end and the other disagrees. Isn't that, in itself, an indication that there are irreconcilable differences between the parties and proof that the marriage has broken down irretrievably?

That is one point that may be worthwhile to explore because if there is an unresolved argument as to whether the marriage has broken down irretrievably, is that not evidence that it has? Further, if parties can agree to marry, why should they not be able to agree to get divorced? Why have we not given careful thought to allowing parties to submit joint petitions for dissolution of marriage, where they indicate that they agree to end the marriage, and submit an agreement regarding the arrangement to care for children for the court's approval?

I know that such a move would not sit well with persons who believe that no-fault divorces have already eroded the sanctity of marriage. However, the delays in bringing a marriage to an end when parties wish to do so, and the anxiety it breeds, creates tension in an already emotional situation and often impacts all persons involved, especially the children, adversely.

As I have said, we have made strides that many other countries have not. In England, for example, there is still a fault-based divorce regime, which is constantly being criticised, and they still do not legally recognise common law spouses. Nonetheless, almost 30 years have passed since we made this bold move, so I think it is time for it to be revisited as a part of a wholesale review of the family-law system.

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