Take the plunge and fight for your rights

By FALON FOLKES

Monday, January 01, 2018

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ARE you well aware of your rights? Many people are having financial difficulties, suffering abuse, or are stuck in difficult situations, not realising that they can approach the courts for assistance. It's not as daunting as it appears to do the following: file for spousal support, child maintenance, protection orders or a divorce, and this year should be the year you get on with it.

Below we share simple steps in applying for a few of the orders affecting women.

SPOUSAL MAINTENANCE

The law stipulates that both men and women can receive spousal support when their union breaks down, if they cannot afford to live like they used to while they were in the union. In fact, even if you were in a common-law relationship for five years or more, you are eligible to apply for maintenance support.

The Maintenance Act of 2005 makes each spouse obligated, as far as they are capable, to maintain the other spouse to the extent that such maintenance is necessary to meet their reasonable needs where they cannot practicably meet them.

An application can be made at any time during the course of the marriage or cohabitation, or within 12 months after the union has come to an end. Applications can be made at the Resident Magistrate's or Family Court.

The spousal maintenance order will continue for a period, or until the spouse who is being maintained marries or is cohabiting with someone else.

CHILD MAINTENANCE

Every parent has an obligation to financially support their unmarried child who is a minor up to age 18, or longer for a child who has any form of physical or mental disability, or who is enrolled in a course of study up to age 23.

Grandparents may also have a role to play — the Maintenance Act 2005 holds that every grandparent, to the extent that they are able, has an obligation to maintain their unmarried grandchildren in the event of the failure of the parents to do so due to death, physical or mental infirmity or disability.

Applying for maintenance is simple — done without a lawyer in the Family Court, or with an attorney through the Supreme Court. The court may even make an award for the payment of a sum of money for expenses in respect of the child's prenatal care and birth.

For situations where one parent is living overseas, Jamaica has reciprocal agreements for child support with several countries — United States (Maryland, New Jersey, Florida); Canada (Manitoba, New Brunswick, Newfoundland, Prince Edward Island); Caribbean islands (Antigua and Barbuda, The Bahamas, Belize, Cayman Islands, Dominica, Grenada, Guyana, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, Montserrat, British Virgin Islands); United Kingdom, New Zealand, Cook Islands, Bailiwick of Guernsey, Isle of Man, Jersey, Niue, and Western Samoa.

The Ministry of Foreign Affairs facilitates enforcement of maintenance orders by transmitting court orders issued in Jamaica for child maintenance to the authorities in the country where the delinquent parent resides for the enforcement to take place. Once this is done, periodic follow-up is done at the request of the person who applied for the order if there is a delay in enforcement. The Jamaican courts also make it possible for a parent living overseas to file for child support from a parent living in Jamaica, provided that the country is a reciprocating state.

You can also still file for maintenance even where the delinquent parent resides in a non-reciprocating state. The court may make orders to facilitate alternative means of service for the delinquent parent to appear in court on a specified date and make other orders as appropriate, having regard to the location of the parties. You would be required to initiate proceedings in the country/state where the other parent resides by sending a certified copy of the court order for registration and enforcement.

In the case where the child is not a citizen of Jamaica but lives in Jamaica with the parent who was granted custody, the law in Jamaica concerning maintenance of children does not make a distinction between minors who are either citizens or non-citizens. Therefore a person may file a claim for such orders concerning any child in Jamaica.

APPLICATION FOR DIVORCE

Our Matrimonial Causes Act requires a marriage to have been in existence for two years to enable you to petition the court to dissolve it, otherwise you must obtain the leave of the court to file within the two-year period. You must also have been separated and have lived separate and apart for a continuous period of not less than 12 months before the filing of the petition for a decree of dissolution. The grounds for dissolution of marriage have to be that it has irretrievably broken down.

The filing of a divorce petition is done by an attorney in the Supreme Court. Once filed, the petition is served on the respondent. Fourteen days after the petition has been served on the respondent (in Jamaica), and if no challenge is raised, the petitioner may submit an application to obtain the decree nisi, the first order in the divorce proceedings.

The application is submitted to a judge to be considered without the need for a hearing. This takes an average of six months.

Six weeks after the decree nisi is granted, the petitioner may apply for the final order in the divorce proceedings — the decree absolute. This is also an application which goes before the judge for consideration without the need for a hearing. It could take upwards of two months for the application to be placed before the judge.

If the divorce is contested, it will take longer for a date to be fixed for a hearing, and the petitioner will have to prove all the facts they set out in the petition.

APPLICATION FOR CHILD CUSTODY

The Children (Guardianship and Custody) Act states that the court may, upon the application of the father or mother of a child, make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent.

Mothers and fathers have equal rights to a child when it comes to custody. Therefore, a father who thinks he would be better able to be the parent with physical custody of the child (have the child reside with him), as well as care and control (solely make legal decisions), can apply to the court for an order for the same. He can also apply to the courts for the mother to pay maintenance for said child. The court does not automatically assume that a child's place is best with a mother, and both parents are treated equally.

Note that all child custody orders come with the “liberty to apply” clause, which means that the order can be amended at any time on application by either parent.

Also, when a court is deciding on custody, it is not solely an economic assessment, or one parent's economic dominance over the other. Other factors will be considered. The court must decide whether an order for joint or sole custody would be appropriate, given all the circumstances presented.

APPLICATION FOR A PROTECTION ORDER

If you are being abused, it is possible to seek the protection of the courts in stemming the physical or mental harm you face. The court is obligated under the Domestic Violence Act to grant you a protection or restraining or occupation order if you are being stalked or ill-treated.

You can seek a restraining order regardless of whether you are a man, woman or child, and irrespective of your relationship to your abuser.

The court may grant a restraining or protection order to prevent the other person from entering or remaining in the house you share. It will also outline other areas which are off limits to your abuser such as your workplace, school or in the area in which your house, place of work or school is located.

You can still get a restraining order whether you are a spouse, are in a visiting relationship, or are a parent, since the Domestic Violence Act gives everyone access to punitive criminal actions in the courts and also to protective remedies under the law. The penalty for violating a restraining order is $10,000 or six months' imprisonment.

Married women can also seek occupation orders against their abusive husbands from the Supreme Court under the Matrimonial Causes Act. An occupation order, if granted, would result in the husband being put out of the matrimonial home, or restricted to certain parts of it. A person against whom the order has been made would be given the opportunity to show the court why it should be discharged if they are of this view.

For the general public, however, a restraining order is sought through the Family Court. Here is the process for getting one:

1. If you are being abused, you can go to the Family Court — or the Resident Magistrate's court in your parish if there is no Family Court — and speak to an intake counsellor or clerk. You will be assisted in filling out a form so that the matter can be brought before a judge.

2. The matter will then go before the judge who will grant an interim order to let your abuser know that they are not allowed to come within close proximity to you.

3. If you are afraid to face your abuser, then a bailiff or a police officer within your community may be asked to inform the partner of the interim order.

4. The case would then be tried by the court which will grant a protection order. This order will detail the distance your abuser has to stay away from you and how long the order will be enforced.

5. If your abuser violates the terms of the order, then you would need to inform your nearest police station so that the matter can be investigated and charges laid.

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