Can a divorce be granted without the parties being present?

Monday, March 01, 2010

Dear Mrs Macaulay,

Can a divorce in Jamaica be granted without the parties being present?

Yes, a decree of dissolution of marriage can now be granted without any of the parties having to attend court to give viva voce evidence. On September 18, 2006, the new Matrimonial Proceedings Rules replaced the old rules for all matrimonial proceedings which were filed on or after this date and the old rules continued to apply to those filed before September 18, 2006 until April 16, 2007, when the new rules became applicable in all matrimonial proceedings.

Under the old rules, the petitioner had to attend court and give evidence in proof of his/her petition. Under the new rules, the petitioner can proceed in default, by making an application to dispense with a hearing when service of the document was not acknowledged or no answer was filed by the respondent. This should be done with the prescribed form which must be accompanied by an affidavit.

The affidavit must give evidence of the marriage, the service of the petition, and the fact that the respondent has failed to acknowledge service of petition or has not filed an answer to the petition or any part thereof. It must also say whether there are any minor and/or dependent children of the marriage or of the family, and, if there are any such children, what the arrangements are for their care, maintenance and upbringing. Sufficient detail must be provided to satisfy the judge that in all the circumstances adequate provisions have been made for their welfare.

The affidavit must also state the circumstances which caused the breakdown of the marriage, what attempts to reconcile were made, and what the results were.

It must also depone to the fact that the application has been served, when, where, and by whom on the respondent; if he/she acknowledged service, or on anyone else who had acknowledged service. The proposed decree nisi in the prescribed form containing all the modifications necessary to fit the particular facts of the petitioner's case must also be filed with the application and the affidavit in support.

These, after being filed, will be put before a judge who will consider the contents of the documents filed and decide whether a hearing is or is not necessary -- on the whole petition or of any part of it.

If the judge decides a hearing is necessary he/she will defer the grant of the decree nisi and fix a date for such a hearing. If he/she decides the entire matter can be dealt with on paper, he/she can grant or refuse the decree nisi. If it is answered and defended, he/she will also issue directions about how the proceedings will be conducted.

If the judge grants the decree nisi, he/she must, if there are minor and/or dependent children, certify that on the evidence on oath (the affidavit or via voce evidence) of the petitioner, that the arrangements for maintenance, care and upbringing of such relevant children are satisfactory or are the best that may be devised in the circumstances.

Orders for custody, care, maintenance and upbringing and access may also be made if the evidence for these was satisfactory or they may be put for hearing in chambers on a later date. This will be decided by the judge on what he/she considers best in all the circumstances of the case.

If the judge grants the decree nisi, he/she must sign that and file it with the application to dispense with the hearing of the petition. It will then be sealed in the court registry and issued to the petitioner.

An original sealed or a certified copy ought to be served on the respondent or on his or her attorney-at-law. This is very often not done nowadays, for reasons unknown to me.

Then six weeks later, the application to have the decree nisi be made absolute can be filed and when obtained, it ought also to be served on the respondent or on his or her attorney-at-law.

If the judge fixes a hearing, the petitioner under the new rules can ask for the matter to be heard in a sitting of the court in any parish other than Kingston. Hitherto, this could not be done as all divorce hearings could only be done in the Supreme Court in Kingston.

I hope this clarifies the matter for you.

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Can a divorce be granted without the parties being present?