All Woman

Did he divorce me?

By Margarette May Macaulay

Monday, March 17, 2014    

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Dear Mrs Macaulay,

I was married for over 30 years and have two children from the union. Unknown to me, my husband had several children outside the marriage. About 11 years ago we separated and maintained separate residences.

In spite of this, we maintained an excellent relationship over the years and he would visit occasionally. He recently died and understandably, I was grief stricken. Shortly after, I noticed that his family members began to slight me and then I began to hear rumours that he had divorced me one year ago. To this day, I have not seen any documents to that effect nor was I given any notice of his intention to do so. Is it possible for him to have divorced me without my knowing or signing any documents?

As to your first query, yes, it is possible for him to have obtained a dissolution of your marriage by deceit, by perjuring himself by lying on oath. The first fraud on the court would have been in the affidavit of service deponed to by the process server, stating falsely that he/she served the petition on you personally. Such an affidavit would state whether your husband accompanied the process server to point you out to him/her if he/she did not know you and that he did point you out to him or her whereupon you were then handed the sealed documents filed in the Supreme Court and on what date. Or, it could be that the process server swore in his/her affidavit of service that he or she knew you before as the wife of your husband the petitioner, and that they handed you the relevant documents.

The process server in the first instance may have been arranged by your husband's attorney. In the second instance, the process server would most probably have been suggested to your husband's attorney by your husband as the person who could effect service upon you on the basis of knowing you.

By either means, your husband would have been a full partner in the deceit or the originator of it and so fully complicit in the commission of perjury at this early stage of the proceedings. Then after the time for you to have filed your acknowledgement of service -- that is 14 days after the date of service -- and for you to file an answer, with or without a cross petition within 28 days of the date of service of the petition on you, he could have applied for his divorce proceedings to proceed in default, that is, that it be dealt with by a judge only on the documents filed by him, without his having to give oral evidence at all.

Remember, if you had not been served, you would not have filed an acknowledgement of service and either an answer or answer with a cross petition, as you would know nothing of the proceedings. In this case, on the basis of the process server's affidavit stating that you had been served properly, your husband could have made an application for the divorce proceeding to proceed in default. In so doing, he would have had to swear to an affidavit in support of this application. In this, he would have sworn that you were served with his petition for the dissolution of your marriage; by whom and the date and the circumstances of such service upon you. He would also have had to have sworn that despite such service upon you, you had not filed an acknowledgement of service of the petition or filed any answer to it. This affidavit would have contained all the evidence on which he relied for the grant of a decree nisi to him on default. His attorney would also have had to file an affidavit of search with the deponent having sworn that a search was conducted of the records at the Supreme Court registry and found that no acknowledgement or service had been filed by you. The processing of his divorce petition would have continued on the basis of his application for default hearing and most especially because of these affidavits in support.

When these documents are considered by a judge of the Supreme Court, because those affidavits would have been sworn to by your husband and the other deponents, there would be nothing to indicate to the judge that you had not in fact been served with the petition at all. He would therefore get his decree nisi and he could have filed for this to be made absolute six weeks after the date.

Your legal options

You should go to the registry of the Supreme Court and ask them to do a search of the Divorce Suit Book and computer records to ascertain whether or not your husband did divorce you at anytime in the last two years or longer. I suggest a longer period of search than the one year rumoured so that you can be even more assured when you complete your search.

If you find that he did indeed file divorce proceedings, and a decree nisi was granted, then you know that his divorce application was not concluded and that you are, despite the fraud committed in the proceedings, still in law man and wife.

You can proceed under section 19 of the Matrimonial Causes Act to have the decree nisi, which has not become absolute, rescinded on the ground that there has been a miscarriage of justice because of the fraud and/or perjury of your husband and the process server in their sworn affidavits. This statutory provision for rescission of the decree nisi on the grounds of fraud, perjury, suppression of evidence or other circumstance, includes the provision that the court may rescind the decree and if it thinks fit, order a re-hearing, or not.

This section will not apply in circumstances when the decree nisi has been made absolute despite clear evidence of the grant having been as a result of one of the circumstances which resulted in a miscarriage of justice.

There are decisions of applications which were successfully made to rescind decrees nisi and absolute. The application therefore must be for the rescission of the decree nisi and all processes and orders and decrees made thereafter.

If your search does not show that your husband filed any petition for divorce and no decree was therefore made dissolving you marriage, then you are his lawful widow and as such would be entitled to claim your widow's share of his estate if he died intestate, pursuant to the Intestates Estates and Property Charges Act.

If he died testate and made provision in his will for you, you could get it but this might depend on how he refers to you in it as some question of interpretation may arise as to your status if a purported divorce exists without you getting the decrees struck out. If he did not make any provision for you in his will you will then, of course, not be entitled to any share in his estate.

So if it is an intestacy and you are indeed still his widow, having found no evidence of a divorce, you can report his death to the Administrator General's Office, so it can administer his estate. You as his legal widow have priority over surviving beneficiaries of his estate. You can retain an attorney to assist you with the entire process.

If you found that he had indeed "divorced" you during your search at the Supreme Court registry, you must decide as quickly as possible whether you are going to apply to have a rescission of it on the ground of miscarriage of justice.

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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