Hubby can't find wife to serve divorce papers

All Woman

Dear Mrs Macaulay,

I currently reside in Jamaica. Back in 2003 I married a woman in England. I returned to Jamaica in 2004 and kept in touch with her until 2005. Since then I have not heard from her. I started divorce proceedings in January of this year and my lawyer hired a process server to serve her at the last known address I had for her. He was told that she no longer lives there and I don't have any other means of contact as I never kept in touch with her family.

Based on the facts stated above, how can I file a petition for presumption of death and dissolution of marriage since it's been 13 years without a word from her.

You have asked how you can file a petition for the presumption of death of your wife and the dissolution of your marriage with her, because of the process server's failure to find and serve her at her last known address. You, however, did not say which country she was last known to be residing. I assume that it was in England.

On the basis that my assumption is correct, before you can prove that you really have grounds on which you can ask the court to presume that she has died, and as England has a centralised registry of deaths where a search can easily be done, I would suggest that you do or have a search done on your behalf because if she died in the UK, there will most certainly be a record of this and a certified copy of her death certificate can be obtained for you. If this is the case, you are and can prove to all the world that you are a widower. You would then not have to file for any orders, decrees and/or declarations to change your status from a married man to a widower.

If her death is not recorded, you would be able to include this fact in your affidavit accompanying your petition for the presumption of her death and for the dissolution of your marriage and exhibit therein a copy of the receipt for the sum paid for the search and the written result of the search. You will, of course, also have in your affidavit the facts of the attempts to serve her, the fact that she no longer lived at the last address you had for her, that you have no other means to obtain her current address as you had not been in contact with any members of her family, and that you have not heard from her for 13 years.

If you knew what newspaper she usually read and it is still in circulation, you could have applied for orders for substituted service instead of personal service of your petition. Since you did not say that your lawyer considered this, I assume that it was not a viable option because you had not known her to be a reader of any newspaper while you were together. In order not to have this question put to you by the judge to whom your petition is assigned and so delay the granting of your decree, I advise that this fact (if my assumption is correct) is included in your affidavit. I say this because you must satisfy the judge that all means open to you in law had been used or could not be used to effect service upon your wife. In other words, give the judge sufficient grounds to conclude that in all the circumstances, your wife cannot reasonably be found after 13 years and is presumably dead.

You ask how you can file a petition for presumption of death and dissolution of marriage. You would do your petition according to the prescribed form of petition in the schedule of the Matrimonial Causes Act, ensuring that it includes all facts required as are stated in the section for presumption of death and that for dissolution of the marriage, and do the required accompanying affidavit referring to all the efforts you made or which were made on your behalf to find her, and all or any documents you have which prove or lend support to any statement of fact in your said affidavit.

You must also do the necessary application and affidavit of evidence in support of your application, if you wish to dispense with a hearing and have your petition dealt with on your documents only, or on oral evidence, then you will have to give your evidence in support of your application in open court. All your documents should be filed and you then wait for the processing in the Registry of the Supreme Court to be done. If you are going to give oral evidence, you or your lawyer will receive the notification of the date you will need to appear to give your evidence.

If the judge is satisfied with the evidence, the decree nisi will be pronounced, as well as the order of presumption of your wife's death, and six weeks after the date of the decree nisi, you can apply for it to be made absolute.

I trust that I have answered your query and wish you the very best.

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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