Is my marriage valid?

Dear Mrs Macaulay,

I got married to a Dominican seven years ago but I didn’t realise that neither his name nor mine are correct on the marriage certificate.

Is this a valid marriage? Because Spanish natives get their mother’s last name, the father’s surname comes before the mother’s. For example, if his name was John Doe Black, Black would be his mother’s last name and Doe his father’s. However, when we got married it was written as John Black Doe. Is this a valid marriage? I want a divorce, but the Supreme Court rejected the name as it appears on the certificate and said I have to correct it first.

Thank you for your letter. You have asked a clear and straightforward question to which the short answer is yes, your marriage is valid.

I am aware of the use of names in Spanish-speaking countries and it is a pity that you and your husband did not notice the error in the order of his name when you were invited to sign the register. But I realise that you both would not be in a state of mind to think of that at such a time.

I am therefore grateful that you wrote to me about your problem, because it gives me the opportunity to suggest to persons planning their marriage to designate one of the marriage party to be responsible to check the entries of the marriage register before the bride and groom and their witnesses sign. Of course the marriage officer ought to invite them to check the entries for errors before they sign in full discharge of his/her duties as such.

But your marriage, despite the misnomer of your husband on the certificate, is valid, because this error does not fall within the list of cases which the Marriage Act, in section 3, legislates are void. These concisely are:- (1) when the person who performs it is not a marriage officer; (2) when two witnesses were not present; (3) when the bride or groom was under 16 years of age; (4) when they are within the prohibited degrees of blood or marriage relationships.

The Act further provides in section 4 that except for the above-stated four cases and those of when one party is articulo mortis – that is to say, at the point of death/dying but can consent to it, all other marriages solemnised which are otherwise lawful shall not be declared void based on a ground that any of the conditions directed by the Act have not been duly observed.

Then there are the provisions of the Matrimonial Causes Act, in section 4, which deals with the grounds for which the court may pronounce a decree of nullity. These include when one of the parties had a wife or husband living at the time of the marriage; (2) in all the list of cases of void marriages under the Marriage Act or any other Act in force in Jamaica; (3) for those celebrated after February 1989 (ie when the Matrimonial Causes Act came into force), when the consent of either the bride or groom was not a valid one, because (a) it was obtained by duress or fraud, or; (b) one of them mistook the identity of the other or the nature of the ceremony which was performed; (c) when one of the parties was mentally incapable of understanding the nature and effect of the ceremony when it was performed; (d) when the parties to the marriage were at the time of the marriage of the same sex.

So there we have it. Clearly the error of the recording of your husband’s name does not fall within any of these cases of void marriages for which decrees of nullity may be pronounced by the Supreme Court.

What then can you do?

You can indeed have it corrected by applying to the Registrar General under section 35 of the Marriage Act to correct the error in the register of marriages.

This the section provides may be done by an entry in the margin in red ink by the Registrar General upon the production by you or your husband of a Statutory Declaration in which you have stated the nature of the error and the true fact or facts of the error.

You should therefore go to the Registrar General’s Department and seek their assistance and then do the statutory declaration, or go to a lawyer and have the declaration done and sworn by you and take it there and make your application.

I wish you all the best and trust that after you obtain the correction of the register and a certified copy of it you can then petition the court for your divorce. Be sure that your husband is served and after you obtain your decrees, both the nisi and the absolute, that you send him certified copies of them. I highlight this because I have noted that nowadays respondents of divorces are not as a rule served with decrees of the dissolution of their marriages, even though their legal status is changed after the absolute is granted. Some have to go through a lot of trouble years later to obtain a certified copy, which they absolutely need if they wish to remarry.

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.