All Woman

Deported Jamaican wishes to divorce American wife

By Margarette Macaulay

Monday, February 03, 2014    

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Dear Mrs Macaulay,

I have a brother who was deported from the US. He married an American woman over there and he wants a divorce but it doesn't seem like she wants to give him one. He has no intention of going back to the States. Can you advise us how this divorce can be dealt with.

This is not very difficult to effect because your brother can apply for his divorce here in Jamaica under the Matrimonial Causes Act 1989, pursuant to which the only ground for divorce is irretrievable breakdown of the marriage. This means that divorce as granted in Jamaica is not based on the finding of fault, none of the old grounds of adultery, cruelty, desertion or constructive desertion apply. However, facts relating to one or more of these old grounds could be the reason why the marriage broke down and the facts which caused the breakdown have to be stated in the petition for dissolution of the marriage anyway. It could also be that the petitioner is no longer in love with the respondent and since they have been separated for a long time he does not want to remain married to the respondent.

Your brother and his wife must, however, have been married for at least two years and have been living separate and apart from each other from the time he decided his marriage was over for one whole year, in order to be able to file for his divorce under the Act.

He must also have a certified copy of his marriage certificate, which must be filed with the petition. If he does not have one with him here, one could be obtained from the county court which serves the city or part of it, where they got married. This can be checked and probably obtained online and it can be posted to him or he can get someone to apply for it up there on his behalf. It must be a certified copy or the original certificate and not just a photocopy.

Once he has this in hand and the 12 months of separation have expired, he can go to a lawyer and give his instructions for his petition for the dissolution to be prepared and filed after he has signed it. Divorces are done in the Supreme Court of Jamaica.

You have not said whether your brother and his wife have any children. If they have children who are relevant children, that is to say under 18 years old, this fact, their full names and dates of birth, must be stated in his petition. In such a case, an affidavit accompanying petition must also be prepared for him, which must contain detailed information about the children like where and with whom they reside, the school they attend, how their maintenance is provided and who provides for this, what is sought with regard to their custody (which he could ask to be joint) and care and control (which I assume if they are very young children he would want his wife to continue to have and do so legally) and for whatever access for him to the children he may wish. The affidavit must also contain a statement whether or not a child is suffering from any disability and about the general health of the child.

If there are no children, then this affidavit accompanying petition is not required to be filed.

However, an acknowledgement of service document must also be prepared in blank and filed with his petition. After the filing, he and his lawyer will then have to proceed with arrangements to have his wife served with a sealed copy of the filed petition plus the acknowledgement of service and, if necessary, the affidavit accompanying petition regarding their children, if any. The warning on the document will inform the wife when she should have it filed in the Supreme Court after she has filled in the blanks by answering the questions asked in it and signed it. If she does not within the number of days specified in the notices to her, the petitioner, your brother, can apply for the divorce proceedings to be dealt with in default of her acknowledgement, which would mean that she would have no right to be heard thereafter in the proceedings.

She has to be personally served, that is to say, the documents must be handed to her and not to anyone else for her. For services abroad, a photograph of the respondent is generally sent as well, so that the process server or anyone else who agrees to assist in serving her and who does not know her, can recognise her. If the person knows her as your brother's wife then that is all to the good. It could be a friend or a cousin or other family member. In such cases, a photograph will not be necessary.

A draft affidavit of service is also generally sent with the documents for the process server or other person who serves to be guided to complete and swear to it before a notary public (after which a county court clerk's certificate of the notary's appointment must be obtained and affixed to the duly executed affidavit of service), or it can be duly executed before the Jamaican consul when no certificate is required. The affidavit of service, in keeping with Jamaican law, must contain certain information, which would be unknown to persons in the United States.

Once the affidavit of service is filed and the period of filing her acknowledgement of service expires, or she has filed it and if she does not indicate an intent to file an answer to the petition or she does but fails to do so in the required time, then his lawyer can proceed by applying for the matter to be dealt with in default on paper by a judge who will consider the documents filed and grant his decree nisi or seek further information or correction. Six weeks after the decree nisi is pronounced, your brother can apply, through his lawyer, for his decree to be made absolute.

When his decree absolute is granted, he must ensure that his lawyer obtains certified copies of the decree absolute and he should have one sent to his ex-wife. This is often neglected, but it ought to be done as the status of both parties change from married persons to divorced persons.

If your brother's wife states in her acknowledgement of service that she wishes to defend and file an answer and she does file an answer, then a date for a case management conference will be set and she must attend this and so must he. At this, the judge will consider whether or not the answer she filed is acceptable under the Act and if it is not, will set it aside or invite her to withdraw it and order the matter to proceed by default. If it is an acceptable answer, then a hearing date of the divorce proceeding to be heard in open court will be set and for the relevant orders to be made.

The fact that she does not wish to have a divorce will not prevent the court from granting your brother his divorce. Once one spouse of the marriage attests that it is over and no amount of counselling will make that spouse reconcile with the other, the decrees will be granted.

The bottom line is that your brother can get his divorce here in Jamaica and he and his wife will be legally divorced once his decree absolute is granted.

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.

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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