Can my sister's estranged husband remarry?

Published: Monday | February 4, 2013 Comments 0
Sherry Ann McGregor
Sherry Ann McGregor

Reader:

My sister-in-law lives in New York and is a green card holder, but her husband lives and operate a business here in Jamaica. They have a four-year-old son together.

Their relationship has broken down in recent years and she recently heard that he has remarried.

Is it possible for him to remarry without her knowing? She has asked me to do some investigation for her, but I don't know where to start. Please help me help her.

Answer:

The situation outlined by the reader is not unique; so the short answer to the question is yes. It is possible for a man to remarry although his 'ex-wife' was never served with a Petition for Dissolution of Marriage. It is illegal, but it is possible.

The person who wishes to confirm whether he or she is divorced, should conduct a search at the Supreme Court to confirm whether there is any record of divorce proceedings having commenced. If those documents are found, the most important information is to be found in the affidavit of services which should say when, where and how the petition was allegedly served on the respondent. It will also be important to note what arrangements have been outlined for the care of the child of the marriage because the assertions regarding custody and maintenance of the child are likely to require adjustment.

In a proper case, the petition for dissolution of marriage must be served on the respondent. The respondent may then decide whether or not to acknowledge service. If no acknowledgement of service is filed, the petitioner may proceed with the matter without serving notice of any further documents on the respondent, except for the decree nisi and the decree absolute.

Where the respondent is served and then files an acknowledgement of service, but has no intention of defending the claim, the petitioner is still required to serve the applications for decree nisi and decree absolute on the respondent. In light of the supreme court's judgement, in the case of Boothe v Boothe, the omission to serve the petition on the respondent could render the decrees void.

In that case, Mr Boothe obtained a decree absolute in December 2004 and even went on to remarry. However, later that year, Mrs Boothe made an application to the court to set aside the decree absolute as being a nullity on the ground that she had entered an appearance when the petition was served on her, but was never served with an application by Mr Boothe to make the decree nisi absolute.

The judge in that case reviewed the matrimonial causes rules and found that the failure by Mr Boothe to serve the application for decree absolute on his former wife caused the decree absolute to be void. The judge said that this also meant that his subsequent marriage was also void.

It is likely that the reader's sister-in-law could successfully apply to set aside the decree absolute if her search reveals that the husband had concluded divorce proceedings without ever serving the petition on her.

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. Twitter: @lawsofeve

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