Marriage dissolved on a perjured Affidavit of Service

Dear Mrs Macaulay,

I am seeking your advice on a marriage that was dissolved without my knowledge. It was dissolved in December 2012. I communicated this to the Jamaica Defence Force (JDF) where my ex is a member, and to my lawyer, but it fell on deaf ears. My lawyer said I should let it rest. I was called in by the JDF where I was informed by them that my ex wife told them she had seen her cousin serving me the papers. This is farthest from the truth. Sometime in May of this year, I asked my lawyer to get a copy of the papers. On receiving the documents, I noted that she said the papers were supposedly served by her cousin who stated that she knew me for over 20 years, but I had to be pointed out to her. This is a total lie.

I am asking what can be done to have this matter settled in the correct way.

Your wife, by the lies, would have ‘suborned perjury’ in procuring her cousin to commit perjury by getting her to swear to the Affidavit of Service.

You are saying that the sworn statements of this cousin in the Affidavit of Service filed in the Supreme Court, without which your wife’s petition could not have proceeded, is a complete lie. The Affidavit of Service is material to, or one can say vital to the divorce proceedings being heard or dealt with at all by the court.

Perjury is committed when a person knowingly makes a false statement in a proceeding in a court either orally or in an affidavit on oath as to some fact which is material to the matter before the court.

Subornation of perjury is committed by a person procuring another person to commit perjury.

On your assertion, you were never served with your wife’s petition on the dissolution of your marriage and the other documents as required by law to be served on you, and you only found out that your marriage was dissolved in December 2012.

You say you informed the JDF and they informed you that she told them, clearly upon their enquiry following your report, that she had seen your cousin serving the documents on you. You later got your lawyer to obtain a copy of the documents from the court, and state that the content as to you being served is a ‘total lie’.

This being the case, your ex-wife clearly suborned perjury by procuring her cousin to knowingly swear to the lie of you having been served in her Affidavit of Service, thereby causing her cousin to commit perjury regarding a material matter in her divorce proceedings. Consequently, both your ex-wife’s offence of subornation of perjury and the perjury of her cousin which led to your ex-wife’s petition for the dissolution of your marriage proceeding caused a grave and clear miscarriage of justice.

You say that your lawyer told you to let it rest. This is a grave mistake as he/she is duty bound not to knowingly be complicit in a miscarriage of justice. He/she is bound pursuant to the Legal Profession (Canon of Professional Ethics) Rules — Canon V, to assist in maintaining the dignity of the courts and the integrity of the administration of justice. Canon V (m) which deals with the knowing use of perjured or false evidence may be apposite in the circumstances. There have been several complaints of professional misconduct in relation to this canon, for which an attorney can be struck off the rolls of attorneys, suspended from practice, or fined.

Your lawyer should have prepared and filed an application on your behalf for an order to rescind the Decree Nisi which was granted on the basis of the perjured evidence in breach of a clear requirement of law.

The Matrimonial Causes Act provides in Section (9) that where a Decree Nisi has been made but has not become absolute, the court may, on an application as a party to the proceedings, or on the intervention of the attorney general, rescind the decree and of it thinks it appropriate, order the re-hearing of the proceedings or not, when it is satisfied that there has been a miscarriage of justice because of fraud, perjury, suppression of evidence, or of any other circumstances.

You will note that the provision says rescission may occur if the Decree Nisi has not been made Absolute. I have always considered that this is a serious confining provision in the statute because a miscarriage of justice could then exist and yet nothing can be done about it under the Act of the party has gone on and obtained the Decree Absolute. This ought not in my view to be permitted at all by the Act because the period between the making of the Decree Nisi and when an application for the Absolute is permitted to be made is only six weeks.

So a fraudulent person, as your ex-wife is, can ultimately get away with all the illegal acts committed by them to enable them to obtain the Decree Nisi. The Rules of Matrimonial Proceedings in support of the Act, state that an application to rescind a Decree Nisi under Section (9) of the Act must be supported by an affidavit containing all the details of facts on which the applicant relies and that the applicant intending to so file must first file an Acknowledgement of Service.

This then is the statutory position. I have in years past done more than one applications after the Decree Nisi had been made Absolute by relying on decided case law. The applications sought orders to rescind the Decree Nisi and to set aside all subsequent proceedings and orders made thereafter.

Your representative should have researched the matter and he/she may have had time to act within the provisions of the Act or if the Absolute had been granted then, by following binding precedents in our case law relating to circumstances such as yours.

The thing is that the application to rescind/set aside must be made as quickly as possible after you find out about the dissolution of your marriage as a result of intentional fraud.

It is now 2015 and the year is more than halfway through. You should get your lawyer to conduct a thorough research of the case law relating to the rescission of decrees Nisi and the setting aside of all subsequent processes from at least as far back as 1989 when our present Act was passed, though it would be helpful to go even further back to get a deeper knowledge of the genesis of the decisions. 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.