Was our divorce a scam?

Dear Mrs Macaulay,

I was told that my husband divorced me and I am waiting for papers and he cannot produce it. I need to know my rights as a woman. What is it that I am to get if I decide not to contest it in the court system?

Thank you for your letter. It is, however, rather confusing because in your first sentence you state that you were informed that your husband had divorced you but though you are expecting documents to this effect, your husband seems to find it difficult or impossible to produce them.

Then the rest of your letter seems to imply that he is applying or has applied for divorce – that is, that he has filed a petition for dissolution of your marriage, with the affidavit accompanying petition and acknowledgement of service, and you have been expecting service of these documents on you for some time. You wish to know that your rights are in such a situation and if you decide not to contest the petition for divorce.

Let me first deal with the initial “seeming situation” from your first sentence. If he has already obtained a decree absolute it means that on the face of it you are divorced and if everything required by the Maintenance Causes Act 1989 and the Matrimonial Proceedings Rules 2006 had been done properly by your husband then you would have some difficulty to get certain orders made on your behalf.

Basically, so as not to be too technical, you should have been served with the documents I mentioned above and you would have had 28 days to complete the Acknowledgement of Service and file it in court and serve it on his lawyer. You could then also file a cross petition, or an answer or an affidavit in answer to his assertions in his affidavit accompanying his petition or you can file a Notice of Application for custody, care and control of children and maintenance for them and/or for yourself, and/or for division of property assets.

If, however, as your letter seems to imply (for the first part at least) that he obtained the divorce without serving you, then he could only have obtained it by filing an untrue affidavit of service alleging that you were personally served, where and when and how you were identified etcetera. This would mean that he could then, after the 28 days had passed, obtain his divorce in default. If this is what happened, he would have obtained it fraudulently, and you can have the whole thing overturned. You should apply to have the decree nisi and all processes which followed from it set aside on the ground of his fraud in obtaining the decrees.

But if you are still waiting to be served and you are served, please go and obtain your own lawyer, especially if you wish to secure your rights to and for your children, maintenance and your share to any property and assets.

If you have children under 18 years of age, you are entitled to custody of them or to share this with him jointly. You may also wish to continue to have the day-to- day care of them, so you should apply for care and control of them.

Since the new Maintenance Act was passed both parents were made responsible for the maintenance of their children. You should therefore apply for an order for him to continue to meet or to start to meet his share of the burden to maintain them. You are also entitled to maintenance from him for yourself if he used to maintain you and if your circumstances are such that you cannot maintain yourself. This could be for the rest of your life, or till a further marriage or while you do further studies or training to enable you to enter the job market and get employment with emoluments sufficient for you to live.

If you both, or he only, had acquired property during the marriage or in contemplation of it – for example, the house you lived in as man and wife (as a family) – as long as it was not inherited by him solely, or he had not owned it before you two got married and your marriage was not a short one, you would be entitled to a one-half share of the family home and a share as the court decides in any other property acquired as I said above and for your joint benefit including not only real property, but personal property as well. This includes cars, art work, furniture, electrical appliances, monies in accounts, debts owed to him or both of you, pension and other work benefits.

As you clearly need to be informed about what is happening, you can yourself go to the court registry and enquire whether or not he has filed a petition and what the status of the application is. Make sure you take an ID with you, and even your marriage certificate, if you have it, so that you can show that you are indeed the person you say you are. The petition would be in his name(s) versus your name(s).

I hope I have answered your questions clearly enough for you to understand your rights in the circumstances you related and that you will take the steps suggested to protect yourself and your children, if any.

Good luck.

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via e-mail to allwoman@jamaicaobserver.com. See responses to your questions in All Woman. We regret we cannot provide personal responses.