Applying for a divorce

I got married in February 2000, and my husband left Jamaica in 2006 for the United States. He did not return until 2010 and he has now remarried. I never receive divorce papers. How can I apply for one now?

Based on the brief facts outlined, the reader's husband either obtained a divorce decree without serving any court documents on her or he got married to someone else without first getting divorced from her. The reader's next step will depend on which of these events occurred.

If a thorough search, including a request to her husband for a copy of the divorce decree, reveals that a divorce decree was granted without the reader's knowledge, she may make an application to set aside the divorce decree on the basis that failure to give notice to her rendered the process void. This approach finds support in the supreme court's judgement in the case of Boothe v Boothe. In this case, it was held that the omission to serve the respondent with the application for decree absolute (final decree in the divorce proceedings) rendered the divorce decree void.

In that case, Mr Boothe obtained a decree absolute in December 2004 and even went on to re-marry. However, later that year, Mrs Boothe made an application to the court to set aside the decree absolute as being nullified 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 reader should note that, just as her husband did, the petitioner in the case of Boothe v Boothe had gone on to marry someone before the court made the order. The judge made it clear that, by declaring that the divorce decree was void, it meant that the subsequent marriage was also void.

It is possible that the reader's husband never commenced divorce proceedings at all before entering into a new marriage. In that case, the new marriage would be void and subject to a decree of nullity being pronounced in accordance with section 4 (1) (a) of the Matrimonial Causes Act, because "one of the parties to the marriage had a husband or wife living at the time of the marriage".

Obtaining a decree

The best advice to the reader would be to confirm the facts to ascertain whether a divorce decree was clandestinely obtained by her husband. This will place the reader in a position to determine the next course of action, which could be to either set aside a void divorce decree or commence proceedings to dissolve her marriage.

Some persons in the same position may choose to allow the divorce decree to stand although they know that court documents were never served on them. That approach is fraught with danger because a divorce decree which was never properly granted is always subject to being set aside. The prudent approach would be to ensure that there is no risk of the decree being overturned because this could have serious implications in relation to legal rights to property or maintenance.

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 on twitter @lawsofeve