Are we divorced?
Dear Mrs Macaulay,
I live in the United Kingdom but married my Jamaican husband in Jamaica a few years ago. The marriage broke down and he left the UK as he had his temporary spousal visa curtailed by the Home Office. He initiated divorce proceedings here in the UK before he left. The judge said he could apply for a decree nisi. I haven’t heard anything since then, and that was three months ago. I assume he may be back in Jamaica but I’m not sure as we are not in contact. I would like to know whether he would be able to pursue a divorce through the Jamaican court system without my knowledge. Or does he have to continue dealing with the UK courts even though he has left?
You have not said how many years you had been married, or whether there are any children of the marriage. All you have said about the divorce proceedings is that he had commenced them before he left the UK, and a judge had determined that he could apply for a decree nisi. The latter only tells me that the judge concluded that your husband had the legal grounds and had met all the jurisdictional requirements to enable him to proceed with his petition and obtain a decree nisi.
I am somewhat at a loss because of a lack of facts. I do not in fact know whether he had actually filed his petition for divorce. You have not even stated whether you were served with it. From what you said about the judge ‘ordering’ that he could apply for a decree nisi, it seems to me that all he had applied for was for the court to grant him leave to file a petition for his marriage to be dissolved. In other words, for the judge to decide whether your marriage was of sufficient duration so that the court had jurisdiction to hear and determine whether the marriage had indeed broken down completely and could be dissolved by a judge of the court there in the UK. This is a procedure to ascertain whether all the legal grounds for divorce in the UK have been met and so the court had jurisdiction to dissolve it.
If I am correct in this reading of the circumstances, then the divorce proceeding itself might not have been filed at all before your husband left. Even if he did, he can abandon it.
He can certainly proceed with a dissolution here in Jamaica. The law requires him to serve you with the petition and all documents as prescribed. These are to be attached to the petition and they are for your use. They would be in blank. They are an Acknowledgment of Service Form, an Answer Form, and an Answer and Cross Petition Form.
As I said, the law requires him to have you served and to prove the act of service by an Affidavit of Service, but there have been many cases over the years where the petitioners have circumvented this legal requirement by being fraudulent about service. They lie to the court in an affidavit of service filed which states untruthfully that they have effected service.
Have you been to the court to check the file there of your husband’s purported proceeding for divorce? You should find out exactly what stage he had reached in order to determine what steps you can take, if necessary, to terminate your marriage. Even though you do not know exactly where he is presently, you can move to obtain your divorce yourself by applying to have his dismissed due to his failure to proceed, if this turns out to be the case. You can obtain an order for substituted service either to a family member of his here who you know he would be in contact with, and/or by advertisement in a daily newspaper here which you know he used to read and would most likely continue to do.
You really must consider that you may yourself have to take charge of the process of dissolving your marriage, rather than sitting back and leaving the matter for your husband to see to. Try and find out from the court first, and get copies of the documents so that you are in a position to obtain full and complete advice about how you can move forward. Having bits of information which may in fact not be the true position is not the proper basis for obtaining advice and for making proper decisions.
By the way, you yourself can, with legal representation here, file a petition to dissolve your marriage with the substituted service order being obtained, and you need not be present here in Jamaica, as you can obtain your divorce without having to appear in person in court. You can have it all done by the necessary documents which you would have signed being filed by your lawyer here, until you obtain your decree nisi and the decree absolute. However, all this would depend on the status of what he actually filed in the court in the UK. It is all up to you. You must be proactive so you can sort out your life and go forward unencumbered.
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. All responses are published. Mrs Macaulay cannot provide personal responses.
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.
