A shocking divorce petition

By Margarette Macaulay

Monday, June 30, 2014

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Dear Mrs Macaulay,

My sister who lives in Jamaica was married to her husband for 18 years. That union produced one daughter who is now 14. The husband left the island on a working programme in Canada with promises that the employer would file for the entire family to come to Canada. But after two years he returned, only to serve her with divorce papers.

He is the owner of a business, has two taxis on the road and bank accounts. He has left nothing for her or any access to any money to take care of herself or their child.

My sister had to move out of the matrimonial house because the electricity was disconnected because of unpaid bills. During the marriage he did not want her to work, but insisted that she stay home and take care of their daughter. How can my sister file for alimony and child support since he is not in the country?

From the way you have related the story, the husband's actions seem to have been 'out of the blue' for your sister. There is no suggestion that your sister was aware of any breakdown in their marriage or that her husband had at any time before the service on her told her that for whatever reason he had concluded that their marriage was over.

If my understanding of the facts are correct, then your sister should and could successfully defend the divorce on the ground that they have not in fact been living separate and apart after any breakdown of their marriage (as there was no mention of one) for 12 months immediately preceding the filing of the divorce papers. I am assuming that the divorce proceedings were filed here in Jamaica on his behalf and were served on her after his return.

You see, while he was in Canada on the work programme with the plans for the filing for his family still intact, and this was never directly or indirectly withdrawn, and then without any hint on his part that as far as he was concerned the marriage was over, they cannot be said to have been living separate and apart. In order to live separate and apart, the parties must each know or one must have been informed by the other that their marriage was over for certain reasons. Then based on this, they ceased to cohabit or to have any intent to do so and live separately and apart from each other.

This cannot happen when he never told her that their marriage was over and he had no intention to live with her ever again as her husband. In such a circumstance, when they were not living separate and apart, the court would not have jurisdiction to deal with his divorce petition.

Your sister can block his application for divorce, and their separation would then commence from the signing or filing of his petition — but then again, not really, as it was only after your sister was served that she knew anything about the fact that her marriage was supposedly over. It would therefore be from when she was served and not before. He would therefore have to wait for the year to expire and then file a petition again at the end of the 12 months of living separate and apart.

Whatever the status of his petition, she should file an application for custody, care and control of their daughter and for maintenance for the child and for herself. In addition, she should file her application for declarations of her interest in all property — his business, the two taxis, his bank accounts, and of course interest in the family home under the Property (Rights of Spouses) Act. She should also in the latter application apply for the sale and division of such properties that must be sold for each of them to obtain their respective proportions as determined by the court. I would also add an application for an order that he pay up the outstanding electricity bills and each monthly bill until the premises is sold and for an order that she and their child may return to the home as he made her stick to being a homemaker throughout the marriage, so he must provide maintenance for her at fixed periods for as long as the court orders.

Your sister can file her application for all I have stated, and I repeat, not only for her maintenance and that for the child, but very importantly also for the custody, care and control of the child and also for declarations of interests and divisions of all assets and properties owned and possessed by him in the percentages ordered by the court and for payment over to them of their respective shares.

The fact that he is in Canada is not a bar to your sister proceeding with her claims; he can be served there. Canada and Jamaica are members of the Commonwealth, so he is not even in a 'foreign' country but is within a country that is part of the Commonwealth of nations. Even if he was in a 'foreign' country like the USA, this would not be a bar, as he can still be served there.

This is why she must go to a lawyer quickly with the divorce petition served upon her. I hope she has not delayed too long. She needs to act quickly before his divorce is completed with nothing filed on her behalf and their daughter's behalf. She must set the record straight and put the true facts before the court and so ensure that the law is properly applied in the case. If she does not act at all, he will get his divorce wrongly because it will be based on false assertions and because of her default, that is to say her failure to act.

If she acts too late and he gets it by his fraud on the court — by lying about their 'breakdown' and that they have been living separate and apart from his alleged date of separation for more than or at least a year before the date of his petition — she may lose her chance of getting maintenance for herself but not for her to proceed with her other applications. She must prevent him getting away with his lie, in any event.

So help her to get a lawyer to act quickly on her behalf to bar him from succeeding in his lie and to enable her to get all her entitlements for herself and for her child, and to put herself in the sole legal position to decide for and protect her child. Her lawyer will ensure that he is served in Canada. I trust that your sister has his home address there or at least his work address. The lawyer will know what to do to get him served so that the court can decide the issues of her and her daughter's entitlements and rights. Good luck to her.

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.


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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