A reader wrote:
I am grateful for your column; however, there is one important issue I hope you can help me with. Is either party free to pursue an intimate relationship while separated and if that could ultimately affect the divorce? A friend of mine really wants to move on with his life and although he has been separated for some time, he was not legally separated so he has another nine or 10 months before he can make his petition. What are his options?
It is not uncommon for persons to start new relationships while divorce proceedings are pending. This is because there are times when couples separate for many years before ever taking steps to dissolve the marriage. During those years of living apart, many changes occur, some of which impact on the divorce proceedings while others do not.
Let us start by confirming the basic principle that neither party needs to prove fault in order to get divorced. Although the petition must state the reason for the parties' separation, there is only a need to prove that the marriage has broken down irretrievably, reconciliation is unlikely and that the parties have separated for at least one year. Therefore, there is no need to prove that either party committed adultery or is guilty of abuse or desertion as may be required in 'fault-based jurisdictions'.
The fact that either party to the marriage has started a new relationship may never arise during the divorce proceedings unless that fact is advanced as proof that the marriage has broken down irretrievably or that there is no possibility of reconciliation. Although the relationship itself may not affect the divorce proceedings, if a child is born to that new union while the divorce proceedings are pending, the child's name, date of birth and matters related to the child's care (so far as they are known) will need to be stated in the petition.
Given the reader's reference to legal separation, it may be helpful to note that legal or judicial separations no longer exist in Jamaica. If either party to the marriage forms the intention to separate and acts upon that intention by taking steps to withdraw from the marriage, separation will be effective. Examples of facts which will suffice to prove separation may vary from one couple to another, but may include the withdrawal of sexual favours or a decision to stop washing, cooking, cleaning or performing other acts for the other party to the marriage which were typical within their marriage. It is important to note that a couple may be separated while continuing to reside under the same roof.
The short answer to the reader's question is that her friend's involvement in a new relationship should not affect his divorce proceedings. He should also seek legal advice as to whether he is now qualified to commence divorce proceedings, since I detect some uncertainty as to what separation means.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions firstname.lastname@example.org or email@example.com. Twitter: @lawsofeve.