Marriage has serious legal consequences because it is a contract which creates new rights and obligations. Unlike other contracts which parties seek legal advice on, most persons who are contemplating marriage do not consider the legal effects of it or seek advice unless they wish to sign a prenuptial agreement. What is equally true is that married couples readily seek advice regarding "how to get divorced" and "what am I entitled to receive?" at the first sign of trouble.
Here is a list of questions to consider when deciding whether you are likely to obtain a divorce decree:
1. How long have you been married?
Generally, you must have been married for at least two years before you can petition for divorce. However, you may apply to the court for permission to file a petition before two years have elapsed if there are special circumstances which justify the making of such an order.
2. How long have you been separated?
You must be separated from your wife or husband for at least 12 months before you can petition for divorce. That 12-month period of separation could have occurred within the first year of marriage; and a couple may be separated while living under the same roof.
3. What is the reason for your separation?
You no longer need to prove that one party to the marriage caused the breakdown of the marriage through infidelity, cruelty, desertion, etc. However, you must satisfy the court that the marriage has broken down irretrievably and that there is no likelihood that cohabitation will be resumed. In establishing these facts, you will be required to briefly state the reason for the separation.
4. Have you attempted counselling and reconciliation?
The court is entitled to ask whether the parties attended counselling and attempted reconciliation; so it is advisable to explore these matters before filing the petition for divorce.
5. Do you have children?
If you have children who are under 18 or 21 years old, and attending a tertiary institution, the court will only grant the divorce if the judge is satisfied that adequate arrangements are in place for their care. Questions will arise regarding living accommodations, school arrangements and maintenance when this assessment is being made.
6. Are you entitled to file your petition in the Jamaican court?
The Jamaican Supreme Court will only entertain petitions where either party is a Jamaican national, domiciled in Jamaica or ordinarily resident in Jamaica for at least 12 months immediately preceding the presentation of the petition.
7. Do you have an original Marriage Certificate?
The original marriage certificate will need to be presented to the Court when the application is being made for the Decree Nisi.