Marriage not consummated and he wants out

All Woman

Dear Mrs Macaulay,
A friend of mine got married 20-plus years ago. His spouse at the time was a US citizen. Shortly after getting married, his wife migrated to the US and never made contact with him again. They had no form of intercourse after or before the marriage.

Now my friend has met someone in whom he has an interest in marrying.

Considering that there are no ties to the first marriage, and he doesn't even know the whereabouts of the,'wife', can he remarry without trying to get a divorce?

If no, will the divorce process be a long and drawn out one?

First things first — your friend cannot, and I repeat, CANNOT, just go ahead and get married because his wife went away after their marriage and never made contact thereafter with him for at least 20 years. You see, your friend and his wife entered into a lawful marriage and by law a court has to pronounce that marriage to be at an end.

If he just goes ahead and gets married again, his second marriage will be a nullity because as far as he knows he has a wife still living. Once this is so, he will be committing bigamy. He must have known at least what town/city and state she was from in the USA.

So he should have made efforts within the last 20 years to try to find her so that their status could be regularised in law. He could have had adverts placed in newspapers asking for information about her, under his lawyer's name, in the town/city she had informed him was her home. He could also seek information from the relevant state authority about whether she had died and when, and obtain a copy of her death certificate, so he could be truly satisfied about such a fact. He would, of course, then be free to remarry whenever he wished, since he could prove her death.

Anyway, he could, from what you have stated, file his petition for a decree of nullity on the ground that the marriage was never consummated, or for a decree of presumption of death and dissolution as he has heard nothing from or about her for 20-plus years, or just go straight for a dissolution of marriage. Whichever one he chooses, with the advise of his lawyer, it must be served on the wife.

Yes, he must get a lawyer. From what little you have stated, I cannot possibly advise him to go for one or the other. The lawyer will be able to delve deeper with him for more information, so that he or she can properly advise him which petition would best suit his circumstances.

As I said, it must be served and since your friend does not have an address for the wife, an application will have to be made to the Supreme Court for orders to serve her abroad and by a means as ordered by the court, other than personal service.

I cannot say how long the proceedings will take. His lawyer might be able to give him an estimate, but remember he has waited for 20-plus years to think of doing anything. He can surely wait for the searches and legal processes to be completed!

All the best to him.

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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