Married, but living separately

All Woman

MAKADIA was 10 years into her marriage when she realised that she and her husband had gotten hitched too young, and maybe didn't understand the significance of marriage or how sacred the institution was. And so she started seriously looking into getting a divorce.

The couple had various marriage issues — infidelity, and even an outside child — and the now 36-year-old, who jumped the broom at 18, said she was at the end of her rope.

But coupled with a promise from her husband that he would change, and her belief that their son needed a stable family, the couple attended counselling and Makadia said she eventually stayed.

“I ended up staying because of both his promise to change and his actions showing that he was willing to change. Also, it made sense for us to stay together because of our family unit and our family ties,” she told All Woman.

“Our son was around seven at the time. He is a very sensitive child and we wanted to give him a sense of stability. So we tried not to argue around him and now we have reached a stage where we are able to coexist in the same house. I would say it's like we are separated, but at the same time we are not, but it works for us.”

For all intents and purposes Makadia is legally married, benefiting from all the trappings that come with the union.

Like her, Omar is comfortable with his “complicated” status, as he said the benefits of staying married far outweigh the disadvantages. And for him, even catching his wife cheating wasn't enough for him to throw in the towel.

“I am self employed, so I'm on her insurance plan which has excellent benefits. I'm a beneficiary of her life insurance and she is in a high-risk job, and our children are covered as well. She is the co-owner of the vehicles I use in my business. Her father does my taxes. We own a home that we both have invested heavily in, and the mortgage is young, so we would both lose if it came down to selling it, and we just have so much tied up into each other financially and otherwise that divorce wasn't even put on the table,” he said of his wife's “slip-up” six years ago.

“I was devastated, of course, and it has been impossible for us to get back to that place of love and respect, so we did the next best thing — stuck to our marriage, while she does her thing and I do mine, but we're still committed to the financial and family aspect of our marriage.”

Like Omar and Makadia, many couples stay together for years, celebrating milestones and anniversaries, not because of love or any deep attachment to their partners, but because it makes more financial sense to stay married. For some, it's the cost of divorce that's out of their reach; for others, asset sharing, disrupting the kids' lives, and even not wanting to rock the boat too much with a partner who is otherwise perfect, makes them hang on to extended separation agreements.

Divorce can be a painful, lengthy and costly process, as Yshema found out when she marched into her lawyer's office asking for a quote three years ago.

“His retainer alone was $50,000 before he would even make an appointment, but I had in my head that that would cover most of the cost of the actual filing,” she said, explaining that she had finally summoned the courage to walk away, after her husband got another woman pregnant, just as she had gotten used to tolerating the two other children he had sired outside their marriage.

“But when he told me the actual cost, and started talking about how much my half of the estate would be valued, and then we started talking about all the kids and their shares, and the other mothers' shares, reality kicked in,” she said. “My husband's wealth was growing, and if I left at that point, I had more to lose than gain. And I wasn't in a position to take care of myself, much less survive on child support and alimony, if the court even saw it fit to grant me that. I also couldn't let another woman benefit from the years of work I had put in into making my husband a very successful man.”

And so with her tail between her legs, she went back home, had another talk with her husband, and they're “coexisting”, while he keeps the details of his affairs private.

Jamaica doesn't recognise 'separated' as a status

Attorney-at-Law Traci-Lee Long was quick to point out that Jamaica does not recognise “separated” as a legal marital status.

“Although the parties have moved on from each other, if they do not get an official and legal divorce they will always bear the married status and all things associated with it,” she warned. “For example, entitlement to benefit under the laws of Intestacy, and the inability to re-marry unless the other party dies, to name a few.”

“Divorce is the only true way to formally end the marriage if both parties are still alive.”

Attorney-at-Law Michelle Thomas said some couples choose to stay married but live separately because of the hassle that comes with getting a divorce.

“[After] a divorce, for example, you may have to change back all your documents into your original name. It creates complexities, for example, if you no longer wish to use your name, you'd have to amend all your documents to reflect that. Sometimes people cannot be bothered with the hassle of doing that and so for [that] purpose just live separately and not have to go through that hassle,” she said.

“Also, some people like the status that the marriage comes with, example, some persons who marry into wealthy families want to remain connected to that family, so they stay legally married.”

She explained that divorce also psychologically affects the children and in an attempt to spare them, some parents remain married until the children are old enough to understand.

Speaking on the right to inheritance, Thomas also said in the event that the divorced couple has children with new partners, the children they have together will still be entitled to whatever assets they have just by virtue of biological ties, as in Yshema's case.

She also advised couples to not file for a divorce without a lawyer because of the complexities involved.

“It's very difficult [because] there is a prescribed form and if it is not done exactly as is [required] then the Supreme Court will issue a requisition to amend the document. So it is very tedious and even lawyers get six, seven requisitions before you reach the decree nisi stage. You can get a requisition for the simplest of things. For example, you fail to put in the employment of the person who served the document, if you don't record the address exactly as is stated on the petition...,” Thomas stated.

Regarding couples who may be considering divorce, but are thinking about the benefits of staying together, Thomas said, “I would never say the benefits of staying together outweigh the risks of divorcing. If you are in a marriage and you are unhappy, this is my personal view, I don't believe you should stay in that marriage. I believe you should find happiness wherever it is, and if you are not happy then you should divorce.”

However, the attorney stated that if there is hope that the relationship can be saved, then the couple should rethink filing for divorce and try counselling.

“If the marriage is not irretrievably broken, there is hope. If it's just simple, petty issues that can be talked over then I don't believe divorce should be considered. Divorce should be considered only in circumstances where there is absolutely no way the marriage can be salvaged.

“One of the first questions I ask is, 'have you tried counselling, do you think it can be worked out?' I don't just take the case because they want a divorce and they're paying me. As a lawyer, you have a duty not just to yourself to make money, but really to society, because this is a potential family that is going to be discarded as a result of the breakdown. You have to ask pertinent questions to get a sense of whether this divorce is really warranted or not.”

Thomas also noted that while she always tries to encourage couples to work out the issues in the relationship, they rarely rethink the divorce and those who do end up rethinking always showed signs that they were not committed to completing the divorce process.

Divorce stages

Wondering about the stages of the divorce process? Long provides a simple explanation below:

1. Commencement — This is filing the petition in the Supreme Court.

2. Service — This is arranging for the original petition, signed and sealed by the court, to be personally served on the respondent. “I consider this a stage by itself because if you can't find the other party and don't make an application to effect service another way, then you cannot move the matter any further.”

3. Decree Nisi — This is a preliminary order from the court by which it confirms that it is satisfied that the proper formalities have been observed and that it approves the marriage being dissolved unless cause is shown why that should not happen.

4. Decree Absolute — This is the final order confirming that the marriage is dissolved.

When to file...

The Matrimonial Causes Act indicates that in order for a person to be eligible to apply for divorce in Jamaica, they have to either be a Jamaican national, permanently live in Jamaica or ordinarily resident in Jamaica for at least one year before submitting the application.

Long also said that in order for a person to qualify for a divorce, the couple must be married for at least two years and be separated for at least one year. Living in the same house does not stop parties from considering themselves separated.

“The court says it's 16 weeks for completion of the matter once the application is error free. I tell my clients we work with a four to six months' timeline, because other things than error can affect the timeline. For example, how fast the client returns documents they need to sign, service issues, etcetera.”

How expensive is a divorce?

Long noted that since the start of 2021, more than 2000 new petitions for divorce have been filed in the Supreme Court, and, “the legal fees for an uncontested divorce (no issues concerning child custody, maintenance, division of property or locating the other party) varies from attorney to attorney and can be as low as $80,000 or as high as $150,000. Various factors such as big firm versus small firm versus sole practitioner or even simply seniority level of the attorney can affect the cost,” she said.

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