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Divorce or the dissolution of a marriage, refers to the final and legal termination of a marital union. Divorce invalidates the legal duties and responsibilities associated with marriage between the parties.
Where children and property are involved, the divorce process can include issues relating to spousal support, child support and custody, the distribution of property and the division of debt.
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In this article, we examine the processes and intricacies involved in obtaining a divorce in Jamaica.
Who Is Eligible For A Divorce?
To qualify to make an application for divorce in Jamaica, the petitioner must be either:
* A Jamaican national
* Domiciled in Jamaica at the commencement of the proceedings
* Resides in Jamaica and had done so for at least 12 months immediately preceding the commencement of the proceedings.
Grounds For Divorce In Jamaica
Petitioners are not required to outline the circumstances leading to the breakdown in the relationship.
Irretrievable breakdown of the marriage is the only grounds for accessing divorce in Jamaica and this is determined by the court.
However, the court is obliged to enquire whether the parties have attempted counselling and whether there is any possibility of reconciliation.
The court will be satisfied that the parties have separated for a continuous period of 12 months even if they resumed cohabitation for an insubstantial time for up to three months in an attempt to reconcile during that 12-month period. The 12-month period would not have been interrupted in spite of such an attempt.
The parties could still be viewed as separated if they continue to cohabit in the same dwelling. This could be considered, for example, if one of the partners has removed from the matrimonial bedroom into another bedroom in the home, ceases to engage in sexual relations, or ceases to carry out household duties such as washing, cleaning or cooking on their spouse’s behalf.
Getting An Attorney
Under the new Civil Procedure Rules, divorce can be sought without an attorney, however it is advisable to get the assistance of an attorney or visit the Legal Aid Clinic for assistance.
Lawyers can provide support by:
Drafting the divorce petition
Obtaining the marriage certificate
Lodging the petition in court
Serving the petition on the respondent
Drafting documents outlining the plans for the care, maintenance and support of children
Requesting that the divorce be granted without a hearing
Negotiating for the settlement of property
Filing For Divorce
Step 1 – Filing the Petition
Once filed, the petition is not immediately returned to the attorney for service on the respondent. The first delay occurs due to the insertion of a step which, although not stipulated by the Matrimonial Proceedings Rules, requires the court’s registrar to vet the petition before signing and stamping.
Even where there are no errors in the documents, the petition may take an average of one month to be signed. It could take longer, if an error is noted, which would involve the petition being refiled.
Step 2 – Applying for Decree Nisi
Fourteen days after the petition has been served on the respondent (in Jamaica), who raises no challenge to the divorce proceedings, the petitioner may submit an application to obtain the first order in the divorce proceedings – the decree nisi.
The application is supposed to be submitted to a judge to be considered without the need for a hearing. What seems like a simple process in theory, could result in an average of six months before the application is placed before a judge.
Step 3 – Applying for Decree Absolute
Six weeks after decree nisi is granted, the petitioner may apply for the final order in the divorce proceedings (decree absolute). This, too, is an application which goes before the judge for consideration without the need for a hearing. It could take upwards of two months for the application to be placed before the judge.
If the couple has been married for less than two years there are some changes to the process that must be considered.
The affidavit in support of the application for permission to file a petition within the first two years of marriage must:
Contesting A Divorce
In some cases, one party to the divorce may not be ready to ‘throw in the towel’. In such cases, the divorce may be contested. It is then likely to take longer for a date to be fixed for the hearing and the petitioner may have to prove all the facts set out in the petition, including the fact of separation and that there is no possibility of resuming cohabitation. These situations do not occur frequently.
3. When the application for the first order in the divorce proceedings (decree nisi) is filed, there is no formula for determining when it will be submitted to a judge for consideration. It could take as long as three months for the documents to reach the hands of a Judge. Some attorneys have resorted to having the matters heard in open court rather than waiting for them to be considered on paper.