Sun | Dec 11, 2016

How you may be delaying your divorce

Published:Monday | January 26, 2015 | 12:00 AM

One reader recently outlined a scenario in which a man has been awaiting a divorce decree for more than two years. The brief facts, which I have paraphrased, are that he is a pastor, who does not earn a steady income and relies on the good graces of his parishioners for support. The problem is that he has two children, in respect of whom his wife made an application for maintenance and that application is yet to be heard.

The reader asked, "How can maintenance of the children be determined if he does not have a steady income or have a job? Does that mean he can or will not get a divorce until the maintenance is settled?"

The Maintenance Act clearly provides that both parents have primary responsibility for maintaining their unmarried, minor children. For that reason, there is an expectation that both parents will contribute towards a child's maintenance in such proportions as may be appropriate, depending on the means and ability of each parent to make that contribution.

In all divorce proceedings in Jamaica, the arrangements for the care of the children of the marriage must be carefully outlined in an affidavit. Those arrangements will be examined by the judge who is considering whether to grant a decree nisi or decree absolute and, unless that judge forms the view that those arrangements are satisfactory neither decree will be granted.

The arrangements for the care of a child includes questions of custody, shelter, maintenance, education and provisions related to any disabilities that child may have. For that reason, divorce proceedings will not be concluded if maintenance arrangements for children are not settled.

When considering an application for child maintenance, the list of factors to be considered is not closed, so each case will be determined on its own facts. In effect, the state of the father's employment and the amount he earns are both relevant. However, the application will ultimately be decided in a manner which ensures that the child's best interests are served.

In other words, each parent's income is relevant to determining how much his/her maintenance contribution will be, but no parent will escape the obligation because he/she does not work. A court will assess whether a parent can work or not (illness would be relevant) and make an award after considering all factors.

provide adequate support

A court could find, for example, that the father chose to be a pastor but could have found other employment so that he could earn a higher income. In such a case, an order may be made in contemplation of the father making an effort to put his affairs in order so that he can adequately support his child. This, therefore, is the answer to the first question, the maintenance issue will be determined whether the father is gainfully employed or not.

As to the second question, the best way to handle the situation is to make a genuine attempt to reach an agreement with the mother regarding the maintenance of the children. Subject to all other requirements being met, a divorce decree is likely to be granted if the terms of such an agreement are satisfactory to the Court.

A litigant could, therefore, contribute to delays in his divorce proceedings if he or she does not settle the terms of the arrangements for the care of his/her child. This is one of the reason I recommend that parties attempt mediation to settle unresolved child-care issues before commencing divorce proceedings.

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