Divorce, maintenance issues

Q: Dear Mrs Macaulay

I had applied through a lawyer for a divorce and maintenance of my child from 2011 in the Supreme Court. I am yet to get those papers. I would like to know if I can recover any funds from the father to support the child as he has not been doing so over the years. Should I now apply for child support through the Family Court, and in the event that the papers come through from the Supreme Court, which ruling should I follow?

A: I am not sure what you mean by “I am yet to get those papers”. Do you mean that you have not yet signed any of the relevant documents for your petition and application for maintenance to be filed? Or do you mean that they were filed but no progress has been made in the matter in the Supreme Court? What has your attorney reported to you about the reason for the delay? From 2011 to 2015 is an inordinately long time for a divorce matter to be languishing, especially under the existing Matrimonial Rules.

Did you also apply for the custody, care and control of your child, with reasonable access to the respondent/father? I hope you did. I am going to assume that your petition and application were filed.

Since you said you applied for maintenance in 2011, I do not understand why you would consider applying in the Family Court for the same thing. Though these courts have concurrent jurisdictions in such matters, I do not think this ought to be done. In some instances the Supreme Court has the power to make certain orders which the Family Court cannot make. You should therefore consider the fact that you may get money for outstanding maintenance which he just ignored and never paid in the Supreme Court by applying for such an order. What you ought to do is to find out in clear terms from your lawyer exactly what is happening or rather not happening with your case. It may have fallen between the cracks, that is to say the file might have been mislaid or overlooked either in the Supreme Court Registry or in your lawyer’s office.

You can also go to the Supreme Court Registry yourself, do a search, and obtain copies of everything that your lawyer filed on your behalf. After you have obtained such copies, you will see everything that was filed on your behalf and so be in a better position to speak with your lawyer about the delay. Then you can find out what he/she had done/is doing to get movement in it and also find out the reason for the delay.

While in the Supreme Court, you could also ask to speak with the Registrar who is responsible for divorce matters and with your copies in hand, you will be able to readily prove the fact of delay and obtain an explanation. You have the right as a party in the matter to find out and get copies of the contents of your file and speak with the Registrar about it and obtain a report about the status of the matter.

You did not say whether you had signed a Notice of Application for Court Orders and your Affidavit in Support of it for your custody, care and control (which I said should have been done), and maintenance application(s). If you did not do so, such a situation would have the effect of delaying the resolution of all your matters because the appropriate applications were probably not filed. Or is it that you did not pay your lawyer the required fees so he/she has put it aside until you do so?

Additionally, one or more requisitions may have been made in your case and directed to your lawyer and he/she may not have to date hereof met or done the matters required in the requisitions. When you get the copies of all the documents in your file at the Supreme Court Registry, if there were requisitions, copies would be in the file and so you will see if this was the reason for the delay.

In fact, my final suggestion to you is to go as soon as possible to the Supreme Court Registry (if you have a copy of any of the documents filed in your matter, take it with you because your claim number will make the search easier and quicker). A reasonable fee for the search and for the copies will be charged. When you obtain the copies as I suggest, you will be fully informed and in a better position to decide what you ought to do about the matter so that you can obtain the necessary orders for your child’s welfare, that is to say, for custody, care and control and maintenance and then finally your divorce. Good luck.

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.