Blinded by love, now seeking an annulment

All Woman

Dear Mrs Macaulay,

I would like to know how I can file a petition for nullity of marriage in Jamaica. I am a Canadian woman living in Canada and my husband is a Jamaican living in Jamaica. We have been apart for over a year now. Our marriage should be deemed void on the grounds that one party (my husband) was mentally incapable of understanding the nature and effect of the marriage ceremony at the time of the marriage. At the time we were married he was 24 and I was 42. I don't believe I need to provide more proof. We were foolish and blinded by our hearts at the time. I will be in Jamaica this year and would very much like to get this done so we can put it behind us and move on. Can you help?

I am afraid that you are going to be disappointed, in that your expectation that you can successfully apply for and obtain a decree of nullity of your marriage is frightfully misconceived.

You say the grounds for which you believe you need no further proof for such a decree is that you were 42 and your husband was 24 at the time of your marriage, and that you were foolish and blinded by your hearts. The gravamen of the basis of your belief after the fact that your marriage is a nullity is that your husband, at the age of 24, was mentally incapable of understanding the nature and effect of the marriage ceremony at the time of the marriage. You then state that you believe that you do not need to provide more proof of his mental incapacity.

You have quoted one of the grounds in Section 4 (1) (c) (iii) of the Matrimonial Causes Act of 1989. There are three categories of grounds for nullity in this subsection, which deal with circumstances when the consent of either party to the marriage could be held to be not valid. The other two categories are when the consent of either party was obtained by duress or fraud, or where one of the parties made a mistake about the identity of the other, or about the nature of the ceremony being performed.

The fact that your husband was young and that you were foolish and blinded by your hearts does not make one party mentally incapable of understanding the nature and effect of the marriage ceremony at the time of the marriage.

Since you are not a doctor specialising in mental health and incapacities – and even if you are – your opinion as the other party of the marriage would never meet the standard of proof on a balance of probability required. You would have to provide a professional medical opinion from a duly qualified specialist practitioner who had sufficiently examined and treated your husband, providing details about his symptoms which would support the opinion that he was at the time of the ceremony mentally incapable of understanding the nature and effect of the marriage ceremony.

The facts of being foolish and being blinded by your hearts are not grounds by any stretch of the imagination for anyone — let alone a court — to find sufficient grounds for granting a decree of nullity on the ground that your marriage is void. In fact, one could argue that many people entering into a marriage contract are at the time being foolish and blinded by their hearts.

Your husband was of full age at the time of your marriage, as he was several years above 18. The fact that you are 18 years his senior is not a reason on which a nullity claim can be grounded successfully.

I deduce that you and your husband consummated your marriage, and some time later you discovered by his conduct that he was not as committed to the marriage as you had believed he would be. In such circumstances, your marriage has failed, like so many others, because your husband has not lived up to the promises he made during your marriage ceremony.

You must therefore file for a dissolution of your marriage by filing a petition for this, and obtain a decree nisi. Six weeks thereafter you can apply for a decree absolute, so that you can go on with your life without the encumbrance of a failed marriage.

I wish you a better choice of a partner or husband next time, and true happiness and contentment.

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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