Is this marriage void?
Dear Mrs Macaulay,
I got married to a gentleman from the Turks and Cacios at the registry in St Elizabeth in 2019. When he went home, he told me that he “just found out” that his “ex-wife” didn’t sign his divorce papers all these years, after all. I’m not in contact with him anymore and I don’t know where he is. Am I able to get this nonsense voided?
Thank you for your letter. You, however, have not stated how many years your “marriage”, which was solemnised in 2019, lasted before he went home and discovered that his “ex wife’ was not in fact an ex.
Let me state the legal position for you, so that you can understand what you must do. The Matrimonial Causes Act 1989 provides that decrees of nullity may be pronounced by the court if the marriage is void on certain grounds, and the one relevant to your situation is where one of the persons who got married had a husband or wife alive at the time of their marriage. It is clear that neither of you knew that his first wife was still in law his wife when you got married. The fact that he did not know that she had not signed the divorce papers before your ceremony and was taken by surprise by this fact, means that no question of bigamy arises in your case. The offence of bigamy would require that he knew at the time he married you that he was not divorced, and from what you have stated, this was not so.
You will note that the provision of the Act which deals with a marriage being void, says that “decrees of nullity of marriage may be pronounced”. So it is not a forgone situation, but a possibility. In situations which are clearly bigamous, there is no question that the court would, without further question, on proof of the fact that a person knew they were not divorced, and that their husband or wife was still alive when they married, pronounce the decree of nullity on the ground that the marriage is void.
But you say the gentleman did not know, and reading between the lines, it seems that not only did you consummate your marriage, but actually lived together as man and wife for whatever period before he returned home and found that his divorce was never completed and finalised.
If my reading between the lines is correct, it would be advisable for you to apply for both a decree of nullity and to have your marriage dissolved. This would make assurance doubly sure that your “marriage”is indeed dissolved completely. On your facts given, your circumstance does not fall within the offences of false or fraudulent marriage ceremonies which are dealt with in the Marriage Act. It was just an unfortunate mistake.
Though you have no idea where you “husband” is now, since you know he went to the Turks and Caicos, you would have to serve him your petition for a decree of nullity on the ground that your marriage was and is void, or your petition for a decree of nullity and decree for dissolution of your marriage. Your application must be served on him for the court to have jurisdiction to deal with it. So you would have to get an order from the court granting you leave to serve him by advertisement in a popular newspaper in that territory, generally in three publications. Copies of the publications must the filed as exhibits to an affidavit of service in the registry of the Supreme Court.
Therefore, you should obtain the services of an attorney-at-law to assist you with your application and the service of it as the law requires. One thing your lawyer can assist you with, and which would perhaps make an application for the court’s decree unnecessary, is that you can search online in the Register of Deaths there. If he is dead, then you need not do anything more. If there is no such entry, then you need to have your attorney prepare and file your application and deal with its service and proving this fact to the satisfaction of the court, so that your application can proceed to the pronunciation of your decree nisi, and then six weeks after that date, apply that the nisi decree be made absolute. Once the decree absolute is pronounced, you shall be completely free of “this nonsense”.
All the very best.
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.
