Distressed about divorce hold-up

Distressed about divorce hold-up

Margarette MACAULAY

Monday, February 24, 2020

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Dear Mrs Macaulay,
I am in total distress. My husband filed for divorce in 2017. To date, the divorce has been sitting at the nisi stage with no hope of moving as the petitioner claims he has no money to continue. I was told that I cannot file a new one whilst the first is in process. What can I do? I really want to move on with my life.

This is an unfortunate state of affairs. You were informed, correctly, that you cannot file a petition for dissolution of your marriage while your husband's is still incomplete and is awaiting his application for the decree nisi to be made absolute. Your husband needs to proceed by making his application for the decree absolute. This part of the proceedings is the least complicated and is generally done at a lower fee, if this was not included in the original fee charged by his attorney-at-law — which would be exceptional and not the general practice. The application for dissolution of marriage is only completed at the grant of the decree absolute and not at the grant of the decree nisi.

Therefore, his application is incomplete and this seems very odd to me and leads me to wonder what kind of retainer arrangement his lawyer made with him. Surely, it could not have been for only a part of the work required for a client who requested his divorce.

Anyway, there is nothing to stop you from applying for the decree nisi to be made absolute, but you must have filed, or you must now enter, your Acknowledgement of Service. Rule 76.14(7) of the Matrimonial Proceedings Rules provide, and I quote it fully, “Either party to the marriage may make application for a decree nisi to be made absolute”.

This you can do by retaining your own lawyer to make such an application for you, or you can, with your husband's consent and active support, provide the funds for his lawyer to do the application on his behalf. I would suggest that you make the application with your own lawyer.

Or you can make an application to the registrar of the Supreme Court in charge of divorces to act under Rule 76.16, which deals with circumstances when a petition for dissolution of marriage is not pursued for a period of one year — and your husband has been stagnating for far more that this. You will ask for the registrar to refer the matter to a judge to make orders and/or give directions which in the judge's view would be just in the circumstances of your husband's petition.

Anyway, as you see, there are things that you could have done and can still do to ensure the completion of the divorce by making your own application for the decree nisi to be made absolute as I mentioned above. In my view, this would be the most direct and quickest means of getting the grant of the decree nisi so that you can move on with your life. So get your lawyer and do your application pursuant to Rule 76.14(7) of the Matrimonial Proceedings Rules 2006.
Good luck.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.


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