Lost in translation

All Woman

Dear Mrs Macaulay,
I would like to know whether a marriage of two Germans conducted in Jamaica eight years ago can be annulled for the reason that one of the partners does not understand English and there was no translator on site.

My understanding of your enquiry and the facts in which it is based is that two German nationals went through the solemnisation of their marriage in Jamaica eight years ago. This I understand to mean that they went through and satisfied the requirements of the Marriage Act, which enabled their marriage ceremony to proceed, and it did, without any impediment having been brought to the attention of the marriage officer or civil registrar who conducted the ceremony.

I also understand that after eight years of the marriage, one party is complaining that he or she did not understand English during the solemnisation of the marriage, though that party must have stated the statutory declaration out loud, that he or she knew of no lawful impediment why the parties should not be joined in matrimony. Further, they would have stated out loud to the other party, as required by the Act, that they called upon those persons there present to witness that they were taking the other to be their lawful wife or husband.

Since the marriage was indeed solemnised and ended with the issue and handing over of the copy of the marriage certificate, it is clear that the recitation occurred in such a manner that the officiating officer had no cause to doubt that the parties knowingly and willingly acquiesced to the marriage.

What then are “lawful impediments” which would result in a marriage being void? The Marriage Act specifies that these are as follows:-

(1) If the marriage is solemnised by or before a person who is not a marriage officer, with the knowledge and intentional acquiescence of both of them;

(2) If the marriage ceremony was solemnised without the presence of two witnesses in addition to the marriage officer;

(3) If one of or both of the parties were under the age of 16;

(4) If the parties are related by the forbidden degrees of blood and relationship pursuant to English law that is in force from time to time.

These are the only circumstances wherein a marriage shall be void.

The Act also provides in the section following the above one, that apart from these and those provided in relation to marriages in “articulo mortis”, no marriage which is otherwise lawful and has actually been solemnised can be declared to be null and void on the grounds that any conditions directed to be observed in the Act have not in fact been observed. Marriages in articulo mortis are those solemnised at the moment or point of death and are valid as long as both parties can make clear their consent in the presence of two witnesses and are over 21 years of age, or are a widower or widow, or that any person who must consent is present and gives his or her consent verbally. Such marriages are specially registered.

The Matrimonial Causes Act also makes provision for the pronunciation of decrees of nullity on the ground that the marriage is void. The grounds for obtaining this decree are:-

(1) When one of the parties to the marriage had a wife or husband still alive at the time of the marriage;

(2) That the marriage is void under the provisions of the Marriage Act — (already stated above) or under any other law which is in force in Jamaica;

(3) When the marriage was celebrated after the date of the Matrimonial Causes Act came into force — 1st February 1989 — and the consent of either party was not valid because:-

(a) It was obtained by duress or fraud; or

(b) One party was mistaken as to the identity of the other or as to the nature of the ceremony performed; or

(c) One party was mentally incapable of understanding the nature and effect of the marriage ceremony at the time of the marriage; or

(d) The parties were of the same sex at the time of the marriage.

It is required that marriages which by law are void cannot be validated even if a decree of nullity has not been granted.

In answer to your request, it is my opinion that as no objection to the ceremony was stated at the time to the officiating officer, and nothing created any doubt in his or her mind as to the validity of the consent and due participation of the alleged non-English speaking party, that the marriage was and is valid, and the fact that it has clearly broken down after eight years is not an acceptable ground for applying for a decree of nullity. Such a petition, if and when refused, would require another petition to be filed for dissolution of the marriage.

I would therefore suggest that it would be more prudent for a petition to be filed for divorce on the only legal ground under the Matrimonial Causes Act — of irretrievable breakdown of the marriage. In addition, under the Matrimonial Proceedings Rules, such a petition does not require the attendance of the petitioner in court to give evidence in support of the application, as long as it is not contested and unless the petitioner so wishes and so applies. When the petition is personally served on the other party and is not contested by him or her, the entire divorce proceeding can be done on paper and the decree nisi granted and the application for the decree absolute six weeks after can also proceed to the grant of the decree on paper.

I suggest that a lawyer be consulted as there may be more facts which were not included in your very short letter. You can obtain their advice and have them draft, finalise and file the petition. All the 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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