Husband does not want a divorce

Dear Mrs Macaulay,

I married my husband in 2008, but we have been separated since 2014. He still insists on holding on even though we are now separated. I have moved on and now have a child for someone else. I have asked him on several occasions to file as I am now in the United States of America and I’m unable to do so personally, but he refuses to go through with it even though I have offered to help with the expenses.

Can a family member submit the required documents for a divorce on my behalf? What else can I do? The first thing you should know is that your husband cannot stop you from petitioning the court on your own behalf for a dissolution of your marriage. Once the marriage has broken down irretrievably and you have lived separate and apart for a period of 12 months immediately preceding the date of the petition, either party can petition the court for a dissolution of the marriage.It matters not that you are in the United States of America. With internet facilities, documents can be transmitted instantaneously, and downloaded, copied and executed wherever you are. The affidavit which must accompany your petition will have to be sworn to by you (signed) before a notary public, whose appointment must be certified by the county court clerk serving the community where you reside. This certificate must be attached to each of the document copies which, when returned, must be filed in the Supreme Court with your petition and other documents required to be filed by the Rules of Procedure. If the certificate is not attached to the affidavit, it cannot be used in your proceedings in court. The law demands this for it to be effective in our system of law.There is, however, an easier means of having your affidavit sworn without the need for the certificate I have referred to above. You can go to the Jamaican consulate where you reside and have it sworn before the appropriate officer, and as long as the consulate’s stamp is affixed to it, the affidavit can be relied upon in the courts here.No family member can submit the documents for you. You must personally sign your petition and the affidavit accompanying the petition in order for them to be effectual, but I see no problem in having them done and sent to you — either as attachments to an e-mail by your lawyer (who can stamp and file them on your behalf), or if you decide to appear in person, once you have prepared and signed all the necessary documents yourself, a friend or family member can help you to stamp and file here.However, it is better to retain a lawyer who can take your instructions, draw up the necessary documents, and send them to you to be signed (as I have stated above). You can then return them to your lawyer who will see to the rest and then arrange for personal service to be effected. An order for substituted service may need to be applied for, if your husband decides to hide and/or evade service.As I said before, it does not matter that you are now living in the United States of America. You can have it done here, and the process can be completed without your physical presence in Jamaica. This is because amendments to the law allow for divorces to be granted on paper, that is to say, in default of any appearance by you. In other words, you do not have to be present here and in court for your divorce to be granted.As I have indicated, you must retain a lawyer to act for you if you wish to proceed here in Jamaica. You can, of course, also apply for a dissolution of your marriage there in the United States. In order to proceed in either place, you must have a certified copy of your marriage certificate which must be filed with your petition and other documents.Your husband cannot effectively prevent you from obtaining your divorce. He may delay it for a while by filing an answer seeking to oppose it, but once you have been separated for over one year and the marriage has irretrievably broken down, he will have no effective legal or factual grounds to prevent the court granting you your decree nisi and later your decree absolute, (as long as you do not cohabit with him before the petition is filed or in between the decrees).I hope I have clarified the matter for you. 

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.