Filing for divorce when a spouse disappears

Dear Mrs Macaulay,

Approximately 10 years ago my brother who is living in Jamaica got married to a lady who’s been living in Canada. Shortly after the marriage he lost contact with her — no phone calls, no form of communication. My brother eventually decided to move on with his life and is now thinking about filing for divorce. However, when he consulted with a couple of lawyers, he was informed that he needs an address for the lady. My brother has no other information other than a copy of the marriage certificate. Is there any advice you can give to help resolve this issue?

It is so good of you to write and seek a way to assist your brother with his dilemma, and he clearly needs the push which you seem to be affording him, so that he can get on with his wish to be free of the yoke of a marriage which clearly died and ended irretrievably shortly after it was solemnised.

You state that he lost contact with his wife shortly after the marriage, in that he received no phone calls or other form of communication.  I must therefore conclude from this, that your brother himself did not make any phone calls to her or write to her and he also never used any other form of communication to make contact with her.  Or,  is it that they got married and she left without your brother knowing her phone number or her address?  If so, how could this have happened?

You then state that your brother eventually decided to move on with his life and is now thinking of filing for divorce. But a couple of lawyers he has consulted informed him that he needs an address for this to be done.   I am hoping that your use of the term “a couple of lawyers”  refers to two and not any number above one in the Jamaican sense! Even in the true meaning of “a couple”, this would be appalling, because  divorces can be obtained and have been granted by courts for many years when the petitioner does not have and has no means of obtaining the respondent’s address.  Additionally, a divorce is not the only process by which a spouse can obtain a termination of his or her marriage in circumstances when the whereabouts of the respondent is unknown, and no contact with or information of that spouse’s existence or place of abode has been received by the Jamaican-bound spouse.

Let me then proceed and see how your brother can resolve his situation and what choices he has in the circumstances.  I shall try to be clear and not be legalistic in any way.

As I said, there have been very many petitions for dissolution of marriages which have proceeded in the court for many years, in which the petitioner did not have or know the whereabouts or address of their respondent spouse, and upon their application to the court for the necessary leave or order, they have been permitted to proceed and to serve or give notice to the other party of their petition for dissolution of their marriage not by personal service, as is the way provided in the Rules of Court for it to be done or formatted, but by a substituted mode or manner of service.  This is generally by advertisements in a popular newspaper or one with the widest circulation in the region or city where the respondent spouse had stated that they were going to reside, or where the petitioner honestly believes they had gone to, or they were led to believe so from a very credible and identified source.

In such a case, if leave is granted, the court in its order would specify the number of publications which must be made, the days, and how they must be spaced.  This is generally for three daily publications during a period of three weeks.  This would therefore mean one publication on each Wednesday, for example, for the specified three-week period of time.  Copies of the publications must be produced as exhibits in an Affidavit of Service in proof of the fact that the order as made was met.

So, what this means is that apart from the petition which must be prepared and filed, it would show that the petitioner has no address to put in the petition of his respondent spouse’s whereabouts. It would give the reason for the irretrievable breakdown of the marriage, and would show that it lasted for a short time only, and that the respondent left the country and made no contact with the petitioner thereafter, and that this has been the case for over nine years of their marriage of 10 years, and that he has no address of where she resides (save and except, if this is indeed so, that he recalls she had spoken of going to a particular city or town in Canada).

The Affidavit Accompanying the Petition would also be very short and contain mostly negative statements, for example, that there are no children of the marriage (which the petition would also state, including the fact that they had only spent whatever number of days/weeks/months at such and such a place), and that consequently no arrangements are necessary to be made and that this affidavit attests to that fact.

Then, as I had mentioned, an application for substituted service would have to be made, as long as your brother has some idea what city or town his wife went to reside.  If he does not, then clearly this manner of proceeding would not  be for him. But it could be, if he knows anyone who knew her and through whom he met her, or where, and the persons with whom  she resided when they met and married.  If there is any such person, his application for substituted service could ask for that person to be served instead. These orders are made on the basis that the person would contact and inform her of the documents and their contents served on them, and if she does not file any document acknowledging the service or file an answer or a cross petition after  some time, the petition can proceed in face of her default (failure to file) and your brother would get his decree nisi and later his decree absolute.

Then he could consider whether he should file a petition for a decree of presumption of death and dissolution of marriage, as after some many years she may in all likelihood be dead. But again, hopefully he has some memory of the city or town in Canada where she went and  never returned to him and their marriage.  You see, it must be a city or town, and then you can assist him to find out which is the most popular newspaper there, preferably a daily newspaper, so the it name can be put in his application. If there is no response, that the presumption would be acted upon and the decrees would be made.

One cannot successfully effect a substituted service in the whole of Canada, but it can be done in a city or town.  There you have it.  The presumption of death may be the better course to take.

I hope that I have clarified the issue for you.  Your brother ought to try to find the means of resolving this matter and search is memory and go to where they met, and speak with any person who may have introduced him to her, and investigate any point of contact, until he comes up with, as I have stated, even just the city or town and then act on this as soon as possible.  I am sure that he can find a lawyer to then represent him.  If not, he can try to prepare and file his petition in person and proceed in this way.

I hope with your assistance he moves forward and obtains whichever petition he chooses to proceed with.

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.