Couple divorcing while still sharing family home

Dear Mrs Macaulay,

Can you explain the part of the allowance in law, where a couple can be separated but still share the same house, and still qualify for a divorce? What is allowed and what is not? Example, what if they are living apart, in separate rooms, but the wife still does the husband’s laundry, to save water? Or they still communicate amicably because of their kids? Does having sexual relations on occasion start the counting process all over again? For clarity, I have been married for six years, and ‘separated’ for over a year. We live in the same house because we have a joint mortgage, and rent is too expensive if one of us moves out. I do his laundry, because if he does it, the water and electric bills increase. But we sleep in separate rooms, and just communicate about our children. I want to file for divorce, but I’m not sure about the rules.

If you do not mind, I shall not deal with the queries in your letter as you have stated them, I shall instead tell you what the law is for circumstances wherein a marriage has broken down and the parties are living separate and apart and one or both spouses wants to proceed to file divorce proceedings. I shall deal with the fact of the estranged spouses continuing to reside in the same family home because of financial reasons, and whether this would bar the court from granting a decree nisi and then the decree absolute ending the marriage. In other words, I shall try to provide you with all the information you have sought and which you need to properly understand your legal rights and obligations and those of your estranged husband.

The law relating to the termination of marriages and orders which may need to be made as a consequence of the divorce decree being granted by the court is the Matrimonial Causes Act passed in 1989 to replace the Divorce Act, which was repealed. So all matrimonial issues, including the dissolution of marriages are governed by this Act. Under the Divorce Act, a petitioner had to assert and prove that their spouse had committed one or more of the matrimonial offences (like adultery, desertion, cruelty, etc) which were in the Act. Since the Act was repealed, these offences no longer exist for a divorce to be granted. On February 1, 1989 when the Matrimonial Causes Act became the law for dealing with divorces, nullities and other matrimonial issues, all those matrimonial offences were removed, to provide only one ground for a decree of divorce to be obtained, and this was the “irretrievable breakdown of the marriage”. The parties need to have been continuously living separate and apart for at least 12 months immediately before the petition for divorce is filed, and it must also be asserted, to the satisfaction of the court, that there is no likelihood of the marriage being resumed by the parties.

The Act also requires that the parties must have been married for at least two years before a petition for divorce can be filed by either of them, unless the prospective petitioner applies for and is granted leave to do otherwise. This latter provision does apply to you, as you have been married for six years.

The Act also provides for applications to be made to it (or even without) a petition having been filed for maintenance of a spouse and of the children; the custody, care and control of the children, and for an injunction to be granted for issues of domestic violence. It can also include, pursuant to the Matrimonial Proceedings Rules in the Civil Procedure Rules 2002, applications for division of property. But bear in mind the existence of the Property (Rights of Spouses) Act 2004 pursuant to which a spousal property claim may be more directly or speedily dealt with. If any of these matters are relevant to your situation, they must be included in your divorce petition and later your notice (s) of applications should be filed so that they can be dealt with and determined so on the consideration of the decree nisi having been granted, the application for this to be made a decree absolute would not be unnecessarily delayed too long. The court needs to know that the arrangements related to the children’s welfare are acceptable or satisfactory before the decree absolute can be granted.

All divorce petitions used to be heard viva voce in the court, by the petitioner attending and giving evidence in person in a courtroom; however, now the Matrimonial Proceedings Rules permits what it calls “proceedings in default”, allowing for the viva voce hearing to be dispensed with and that the petition be dealt with by a judge.

The documents to be filed include an affidavit stating the evidence about the marriage; that the petition was served and when, where and by whom; that there are no relevant children but where there are, giving details of the arrangements made for their care, maintenance and upbringing; the circumstances which caused the breakdown of the marriage and any attempts made to reconcile which were unsuccessful; and that the application for default proceedings which have been served on the respondent, and details of such service.

Now let me touch upon your particular points. You and your husband continuing to reside separately in separate rooms in the same premises because of your joint mortgage and the fact that neither of you can afford to do otherwise. You communicate amicably, but mostly about your children. You do his laundry in order to save water and make it less costly; and you have sex occasionally but you want to obtain a divorce. You are concerned that this living arrangement may compromise your petition for divorce. Well, you need not worry about that. It is wonderful that you and your estranged husband get on so well, having been living separate and apart. It would be a more wonderful world if other estranged couples could live as you and your husband are doing.

The Matrimonial Causes Act provides in Section 6(2), on the meaning of ‘separation’, that the parties can be separated and have lived separately and apart though they have continued to live in the same residence, or that either of them does some household services for the other. So, your doing laundry does not affect the fact or concept of separation and living separate and apart. The Act also provides that if the parties resume “cohabitation” even with a view to reconcile (which your sexual relation on occasion does not fall within), once this is does not exceed three months, it cannot interrupt the separation period. So you see you are safe in your occasional sexual encounters.

I do urge you both though to consider seeing a marriage counsellor and see whether the reason for you wishing to obtain a divorce is sufficiently sensible and reasonable. It is always a good idea to try to reconcile before you take the drastic step of obtaining a divorce. But it is for you to decide, and legally once one party to a marriage is of the view that the marriage has irretrievably broken down and that there is no chance of you and your husband cohabiting as husband and wife again, if his view does not accord with yours, he cannot defeat your petition. So it is up to you!

I hope that I have clarified the position for you. I wish you and all your family 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.