The courts and divorce

Published: Monday | December 24, 2012 Comments 0
Sherry-Ann McGregor
Sherry-Ann McGregor

Under Jamaican law, where a couple got married does not determine whether either party is able to commence divorce proceedings in the Jamaican Supreme Court. The Matrimonial Causes Act states that there are three bases on which the court has jurisdiction in a divorce matter - if either the petitioner or the respondent:

1. Is a Jamaican national;

2. Is domiciled in Jamaica at the time of commencement of the proceedings; or

3. Is resident in Jamaica at the time of the commencement of the proceedings and was so ordinarily resident for at least 12 months immediately preceding the commencement of the proceedings.

One reader asked whether she was obliged to pursue divorce proceedings against her Jamaican husband before the Jamaican court, because they got married in Jamaica. Although I am not competent to advise regarding Canadian law, my checks online suggest that divorce proceedings may be commenced in Canada if either party was ordinarily resident in a Canadian province for at least 12 months before filing. Therefore, the reader may be entitled to start the divorce proceedings in a Canadian court.

The reader should also note that the fact that her husband is a Jamaican national means that she is also at liberty to commence those proceedings in the Jamaican court. However, the reader should also observe the general rule that, under the Matrimonial Causes Act, the petitioner must show that the parties were married for at least two years, separated for at least one year, and that the marriage had broken down irretrievably at the time of commencement of the divorce proceedings.

In many jurisdictions, even while parties remain legally married, they are able to apply to the court for judicial or legal separation. In this way, they are able to obtain a court order to formalise their responsibilities during separation, including matters such as maintenance and the care of children.

Section 35 of the Matrimonial Causes Act specifically states that "proceedings for a decree of judicial separation, restitution of conjugal rights and proceedings by a husband for damages against an adulterer" are abolished. However, it is now common for parties to sign separation agreements to settle the terms of their separation in much the same way as a legal separation order would. The difference is that the separation agreement is an enforceable contract and not a court order.

The reader would be well advised to consult an attorney-at-law in Canada to determine whether her desire for a decree of judicial separation or to commence divorce proceedings after only one year of marriage may be met in that jurisdiction. This is because, in the absence of exceptional circumstances, she will not be able to get a decree of judicial separation in Jamaica, and she would have to wait at least one more year before she would be able to commence divorce proceedings here.

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


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