Obtain A Divorce In Jamaica West Indies

Child Custody

No one parent has a superior right to the child. Any parent may file or get custody of the child as long as it is in the child’s best interest. 

After this initial step of filing your case with the court, a summons is sent to the other parent who is not filing; for them to appear in court on a specified date. On the court date, they will allow both parents to present their case.

 The parent filing for full custody may have to write why they feel they should have the child’s complete procession. 

The judge may ask relevant questions, including the yearly income of both parents, the living situation the child would be in, and other related issues. If allegations have been made against either parent, for example, one parent’s abuse reports, the court investigates before deciding.

 If a parent can not show up to court, they may be represented by a family member with frequent communication. Please remember, no two cases or family situations are the same. The court may ask for additional information on the matter if they so see fit. 

A Father’s Right to Custody

 The Children (Guardianship and Custody) Act allows that mothers and fathers have equal rights to a child when it comes to custody, and both have equal right to apply to the courts in respect of any matter affecting the child. 

The court may, upon the application of the father or mother of a child, make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child. 

Therefore, a father who thinks he would be better able to be the parent with physical custody of the child (have the child reside with him), as well as care and control (solely make legal decisions), can apply to the court for an order for the same. He can also apply to the courts for the mother to pay maintenance for said child. The court does not automatically assume that a child’s place is best with a mother, and both parents are treated equally.   

A Father Seeking Custody Should: 

1. Make an application for custody, care, and control in the Family Court (if there is one in the parish) or the Resident Magistrate’s Court if there is no Family Court or the Supreme Court. Both courts have jurisdiction to deal with such applications. 

2. A summons will be served on the mother of her need to appear in court to contest the father’s application. If the mother is unavailable, the father can apply for substituted service. This could involve a notice in a national daily newspaper; a copy of the application posted to a family member with whom the mother is close who is likely to bring it to her attention, or service on a member of her family with whom she has or is likely to have regular contact. 

3. The father will write an affidavit in support of the application, outlining why it is and will be in the best interest of the child for him to have custody, care, and control, and for the mother to have periodic (but fixed) access. The affidavit should also include facts of his home environment and plans for the daily care of the child, as well as plans for the child’s education and religious upbringing. 

4. Both parties will appear before a judge where the case will be heard and the judge will decide on the child’s placement. 5. It should be noted that no matter regarding children is set in stone in the courts, thus the clause “liberty to apply” will be added to the court order, which means that either parent can apply for changes to the order if they are not satisfied with the arrangement. 

The Granting of Child Custody Will be Determined by the Following Criteria

 Several factors are likely to be considered when determining what is in the best interest of a child. 

Child’s physical, emotional, educational needs 

The capacity of either or both parents to provide a safe home, food, and clothing for the child is important, so the court will assess the adequacy of the accommodations in which a child will live. However, these needs are not only measured in material terms. 

The quality of the home life and the time and energy which each parent can devote to the care and upbringing of the child are also critical. The child’s need for maternal or sibling support may also be relevant when determining where his emotional needs will be best met, so the court will also examine the quality of the relationship and emotional ties between the child, the parents, and any siblings. 

Issues to be considered in the Interest of the child. 

Where a child is settled in a school, the court may be reluctant to grant custody to a parent who will not be able to guarantee continuity of those arrangements. 

Wishes, feelings of the child 

Even though the court is unlikely to simply accede to a child’s request to live with one parent or another, the views of an older child may be relevant and persuasive in deciding what order to make.

Likely effect of changed circumstances on child 

There is general acceptance that the removal of a child from a home that he has known may have damaging long-term consequences. The court is likely to be influenced to maintain the status quo the longer the child has enjoyed the arrangements which exist at the time of the application. 

Child’s age and sex 

There is no presumption in law that one parent should be preferred over the other based on the age or sex of a child. In other words, there is no greater probability that a mother is likely to be granted custody of a baby over its father. However, it may be true that, when the scales are balanced and both parents are equally qualified to be granted custody, the mother may be chosen over the father if the child is very young. 

Harm to which the child may be exposed 

The court will be mindful of any risk of sexual, emotional, physical, or psychological abuse when the decision is to be made. This will include any history or threat of violence to the child or any other person in the home.

The capacity of a parent to meet a child’s needs

This is not solely an economic assessment. Other factors, such as the parent’s and child’s mental and physical health and lifestyle, may be considered. When a court is confronted with custody disputes, emotional baggage often clouds the issues; so to determine what outcome will be in the best interest of the child, a court must decide whether an order for joint or sole custody would be appropriate, given all the circumstances of that particular case, without relying on previously decided cases, since the outcome of any application for custody must be decided on its peculiar facts. 

Ultimately, avoiding custody battles will inure to the benefit of all parties to the dispute, especially the child. This is particularly because no court order will address the parents’ inability to communicate effectively or the selfish motives which often underscore the claim for custody. 

How is Child Support Granted? 

There is no minimum or maximum amount payable for child maintenance. The Court will assess the needs of the child to determine the amount of financial support required; factors include: 

• Physical and mental health
• Nourishment needs
• Educational needs
• Extracurricular activities
• General health needs

 The Court will assess the financial means of both parents or legal guardian(s); factors include: 

• Job description
• Salary amount
• Loans or liabilities

Consequences 

 A maintenance order for child support is developed in a Court Order. If the parent or guardian is found in breach of the Court Order, he or she can be held in contempt of court, which may amount to jail time.

Common Misconceptions of Child Support

• Only fathers pay child support –  The law is not gendered specific on the payment of child support. The Court places the burden equally on each parent or legal guardian to care for the child.
• Unemployment equals exemption from child support claims – The Court can still order an unemployed parent or guardian to make monthly child support payments. This is to assist the individual who has custody of the child with maintenance.
• Mothers will always be favoured in custody hearings – The Court will assess the home environment and the availability of the parties involved to determine who is best suited to have care and control of the child. In cases where mothers have custody of the child, the father still qualifies for visitation rights.

Judiciary of Jamaica

The legal system of Jamaica is based on British common-law. The administration of justice is carried out through a network of courts. The courts of Jamaica are:

The Judicial Committee of the Privy Council, which is the final court of appeal, is based in London, England. It hears appeals on criminal and civil matters from the Jamaican Court of Appeal.
The Court of Appeal consists of the President of the Court of Appeal, the Chief Justice (who sits at the invitation of the President) and six judges of the Court of the Appeal. A person who is dissatisfied with a decision of one of the other courts, except Petty Sessions, can appeal to this court. Petty Sessions appeals are heard by a judge in chambers.
The Caribbean Court of Justice (CCJ) is one of the primary institutions of the Caribbean Community (CARICOM). The CCJ has two core functions − to act as the final appellate court for the CARICOM member states and as an international court ruling on matters relating to the foreign policy coordination of the Revised Treaty of Chaguaramas (2001) that outlines terms of economic cooperation among CARICOM members.
The Supreme Court of Jamaica is responsible for hearing serious civil and criminal matters.
At the parish level, the Resident Magistrates’ Courts deal with less serious civil and criminal offences. The Resident Magistrate of a parish is also the Coroner and conducts preliminary inquiries into criminal matters.
There are four special courts – Traffic Court, Gun Court, Family Court and Revenue Court. There are also Petty Sessions courts that deal with minor offences and are presided over by Justices of the Peace.

Prenuptial Agreement

A prenuptial agreement (often referred to as a prenup) is a contract entered into between two parties before they marry. It records the ownership of assets and details what will happen to these assets should the marriage break down and end in divorce.

In the simplest of terms, a prenup dictates “who gets what”, but there is a lot more to consider before deciding on signing a prenuptial agreement and there are many misconceptions about them.

Prenuptial agreements are often considered the preserve of very wealthy individuals, such as businesspeople and celebrities, who are looking to protect their assets from a less wealthy future spouse.

This misconception may be a consequence of the fact that prenups will often appear in the news when famous people go through a public divorce. In actual fact anyone can get a prenup and there are a number of reasons why you might consider signing one before marrying.

Domestic Partnership

The domestic partnership is a legal relationship between two people of the same or opposite sex who live together and share a domestic life, but aren’t married or joined by a civil union nor are blood relatives

A common-law/domestic partnership relationship is possibly the most prevalent form of committed relationship in Jamaica.  Many individuals opt out of walking down the aisle to marry their significant other because of fear of commitment yet their day-to-day activities is similar and in likeness to that of a married couple. The main fear indicated by many is the thought that if they live together and eventually separate, there will be no need for division of property. This is a common misconception as there are laws to protect parties who have been in a common law union.

Defining Spouse

Section 2 of The Property (Rights of Spouses) Act defines “spouse” as including a single man and a single woman who have been cohabiting together as if they were in law husband and wife for no less than five years. The term ‘cohabit’ is defined as meaning, ‘to live together in a conjugal relationship outside of marriage’.                                                  

How can you determine if you are in a common law relationship?

In the case of Kimber v Kimber (2000), it highlighted the factors that would determine if you are in a common-law relationship. They are as follows:

1. Living together in the same household
2. A sharing of daily life
3. Stability and a degree of permanence in the relationship
4. Shared Finances
5. A sexual relationship
6. Children
7. Common Intention and motivation

What is a postnuptial agreement?

An agreement entered into after marriage or civil partnership that regulates the financial terms of separation, divorce or dissolution. In the case of civil partners, they are sometimes referred to as post-civil partnership agreements or “post-cips”.

Are postnuptial agreements legally binding?

If done properly, it is extremely difficult to challenge the terms of a postnuptial agreement. Postnups are not strictly legally binding, but they can be more likely to be upheld than prenuptial agreements because there is no looming wedding date putting pressure on the couple to sign up.

Why would I need a postnup if we have already signed a prenup?

When there is any concern about the strength of a prenup (for example, if it was only signed the day before the wedding), clients sometimes wish to sign a postnup to reaffirm the terms of the prenup. Postnups are also useful where there has been a change in circumstances since the prenup was signed (for example, an unexpected inheritance or career change) in order to re-visit the terms of the prenup. Postnups are also considered where a couple has had relationship difficulties and want the marriage to continue with financial peace of mind.

Wills and Testament after divorce

Divorce does not revoke a will that has been made during the marriage. But once the decree absolute has been issued, the former spouse of the testator will be treated as if they have died for purposes of the will.

Therefore any instructions in the will to leave assets to their spouse will be disregarded from the point at which the divorce takes effect.

This means that, if the former spouse is the sole beneficiary in the will, the testator will be considered intestate in the event of their death – and their estate will be dealt with according to the Rules of Intestacy.

To ensure that assets are distributed according to your intentions, rather than being determined by the Rules of Intestacy, it is always advisable to draft a new will upon divorce.

Can My Spouse Make A Claim For My Inheritance After Divorce?

here is a common misconception that after you have divorced your spouse, they cannot make an inheritance claim against your estate while you are alive or after you die. But provided they did not remarry, an ex-spouse may bring an inheritance claim. Such claims tend to be brought in cases where ongoing financial support, for example, payment of spousal maintenance as part of the divorce settlement, ends when they die. In addition, there are circumstances where an inheritance is included within the available matrimonial assets for division upon divorce. Every case is unique so speak to an attorney at law by completing the form on this page.