Wife obtained divorce without husband’s knowledge

Dear Mrs Macaulay,

I was married in the early 90s to someone I thought I would grow old with. We had somewhat of a good marriage and used to travel overseas together on vacation. The marriage was good until she started travelling overseas by herself. This marriage lasted until 2012 when she obtained a decree absolute by devious means.

I was never forewarned about these divorce proceedings until I was advised by one of her co-workers that she told him to inform me that “the thing came through”. Having heard this, I asked, “What thing?” and was told, “the divorce”.

I made inquiries and found out that she had said that her cousin (this cousin is her confidante in all her doings) delivered the petition to me. I have lived at my address during our marriage and for over 20 years and no such petition was ever delivered to me. I have since made contact with the Supreme Court and have obtained a copy of the decree absolute.

How do I correct this illegal act?

The situation you have found yourself in is not unusual. In fact, it happens quite a bit and has been occurring for very many years, with many decided divorce cases being obtained fraudulently and unlawfully. It is not referred to as an “illegal act”, as I am not aware of any criminal action having followed any action of intentionally misleading the court in the course of a divorce proceeding.

There may have been instances when action was taken against a petitioner or process server who knowingly made sworn false statements in divorce proceedings, that the petition and attendant documents had been personally served on the respondent. This is perjury. Such sworn false evidence may have been given orally or in an affidavit of service that they had served the respondent with the petition and attendant documents at a particular place, date and time.

I do know that in instances when it has been evidentially proved that such false evidence was produced and used in divorce proceedings by the attorney-at-law acting for the petitioner, complaints would be laid against such a lawyer to the General Legal Council.

You can consider pursuing a charge of perjury against your wife’s cousin. It seems clear that the false affidavit of service was sworn by her to be true when she well knew that it was untrue. It would obviously have been done at the instigation of your wife, and she could also be charged with intentionally and knowingly causing her cousin to make the false affidavit in order to intentionally mislead the Supreme Court judge to entertain her divorce petition and grant her a divorce.

The passage of the Matrimonial Causes Act 1989 provides for applications for the rescission of the decree nisi, firstly by the petitioner, before it is made absolute, on the ground that the parties have reconciled. The second circumstance is also to be made before the decree is made absolute, by one the parties to the marriage, or on the intervention of the Attorney General if he or she is satisfied that there has been a miscarriage of justice because of fraud, perjury, suppression of evidence or of any other circumstance.

The circumstance you have related about your wife’s purported divorce is a miscarriage of justice, BUT the decree nisi has already been made absolute. You therefore cannot act under this section of the Act.

So you are left to (1) accept the fact of your wife’s unlawfully obtained divorce, as your marriage had clearly irretrievably broken down; (2) pursue the charge of miscarriage of justice by perjury and fraud against the cousin or (3) proceed to obtain a pronouncement of the grants of decrees being a miscarriage of justice and therefore null and void. This can only be made under the inherent jurisdiction of the Supreme Court.

I therefore suggest that you find yourself a good family law lawyer and try to pursue the third and last possibility I have stated above and/or number (2).

I wish you the very best and hope you can pursue your cause of action in relation to the nefarious and unlawful actions of your wife and her cousin in causing the court to grant a divorce based on blatant lies about the service of the petition on you. A petition must be served on you personally and failing this, pursuant to an order of the court, it must be served by substituted service. If it is not served, no divorce proceeding can be entertained by the court, let alone be granted.

So please retain a good lawyer to work with you on this.

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.