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Obtain A Divorce In Jamaica

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Divorce or the dissolution of a marriage, refers to the final and legal termination of a marital union.
Divorce invalidates the legal duties and responsibilities associated with marriage between the
parties. Where children and property are involved, the divorce process can include issues relating to
spousal support, child support and custody, the distribution of property and the division of debt.*
*Definition provided by Assamba Law.
In this article we examine the processes and intricacies involved in obtaining a divorce in Jamaica.

Who Is Eligible For A Divorce?

To qualify to make an application for divorce in Jamaica, the petitioner must be either:

* A Jamaican national
* Domiciled in Jamaica at the commencement of the proceedings
* Resides in Jamaica and had done so for at least 12 months immediately preceding the
commencement of the proceedings.

Grounds For Divorce In Jamaica

Petitioners are not required to outline the circumstances leading to the breakdown in the
relationship.
Irretrievable breakdown of the marriage is the only grounds for accessing divorce in Jamaica and
this is determined by the court.
However, the court is obliged to enquire whether the parties have attempted counselling and
whether there is any possibility of reconciliation.

The Process
Separation
The court will be satisfied that the parties have separated for a continuous period of 12 months even
if they resumed cohabitation for an insubstantial time for up to three months in an attempt to
reconcile during that 12-month period. The 12-month period would not have been interrupted in spite
of such an attempt.

The parties could still be viewed as separated if they continue to cohabit in the same dwelling. This
could be considered, for example, if one of the partners has removed from the matrimonial bedroom
into another bedroom in the home, ceases to engage in sexual relations, or ceases to carry out
household duties such as washing, cleaning or cooking on their spouses behalf.

Getting An Attorney
Under the new Civil Procedure Rules, divorce can be sought without an attorney, however it is
advisable to get the assistance of an attorney or visit the Legal Aid Clinic for assistance.
Lawyers can provide support by:
Drafting the divorce petition
Obtaining the marriage certificate
Lodging the petition in court
Serving the petition on the respondent
Drafting documents outlining the plans for the care, maintenance and support of children
Requesting that the divorce be granted without a hearing
Negotiating for the settlement of property

Filing For Divorce


Step 1 - Filing the Petition
Once filed, the petition is not immediately returned to the attorney for service on the respondent. The
first delay occurs due to the insertion of a step which, although not stipulated by the Matrimonial
Proceedings Rules, requires the court's registrar to vet the petition before signing and stamping.

Even where there are no errors in the documents, the petition may take an average of one month to
be signed. It could take longer, if an error is noted, which would involve the petition being refiled.

Step 2 - Applying for Decree Nisi


Fourteen days after the petition has been served on the respondent (in Jamaica), who raises no
challenge to the divorce proceedings, the petitioner may submit an application to obtain the first
order in the divorce proceedings - the decree nisi.
The application is supposed to be submitted to a judge to be considered without the need for a
hearing. What seems like a simple process in theory, could result in an average of six months before
the application is placed before a judge.

Step 3 - Applying for Decree Absolute


Six weeks after decree nisi is granted, the petitioner may apply for the final order in the divorce
proceedings (decree absolute). This, too, is an application which goes before the judge for
consideration without the need for a hearing. It could take upwards of two months for the application
to be placed before the judge.

If the couple has been married for less than two years there are some changes to
the process that must be considered.
The affidavit in support of the application for permission to file a petition within the first two years of
marriage must:

Provide proof of the marriage (e.g. a copy of the marriage certificate)

State the special circumstances which justify the hearing of the petition

Give particulars of any attempted reconciliation (an affidavit from the marriage counsellor
would be helpful)

State whether there is a reasonable likelihood of a reconciliation

State whether there are any children, their names, ages, dates of birth and the arrangements
for their care, maintenance and upbringing; and

Exhibit a copy of the proposed petition.

Contesting A Divorce

In some cases, one party to the divorce may not be ready to 'throw in the towel'. In such cases, the
divorce may be contested. It is then likely to take longer for a date to be fixed for the hearing and the
petitioner may have to prove all the facts set out in the petition, including the fact of separation and
that there is no possibility of resuming cohabitation. These situations do not occur frequently.

Possible Delays

1. The registrar of the Supreme Court vets and corrects each and every petition for dissolution of
marriage before it is signed and returned to the attorney for service on the respondent. This process
could take as little as three weeks or as long as eight weeks.

2. If there are errors in the petition, the registrar will notify the attorney so that the errors can be
corrected and the petition resubmitted for signing. The time period for the completion of this process
cannot be easily determined, as the petition could then go to the back of the queue before it can get
signed.
3. When the application for the first order in the divorce proceedings (decree nisi) is filed, there is no
formula for determining when it will be submitted to a judge for consideration. It could take as long as
three months for the documents to reach the hands of a Judge. Some attorneys have resorted to
having the matters heard in open court rather than waiting for them to be considered on paper.

Resources From The Gleaner


Here are some useful links to FAQs about divorce in Jamaica
Divorce in Jamaica
More divorce questions answered
Divorce checklist
Find a divorce lawyer on diGJamaica

Divorce Checklist
Published:Monday | January 24, 2011 | 12:00 AM

McGregor

Marriage has serious legal consequences because it is a contract which creates new rights and obligations.
Unlike other contracts which parties seek legal advice on, most persons who are contemplating marriage do
not consider the legal effects of it or seek advice unless they wish to sign a prenuptial agreement. What is
equally true is that married couples readily seek advice regarding "how to get divorced" and "what am I
entitled to receive?" at the first sign of trouble.

Here is a list of questions to consider when deciding whether you are likely to obtain a divorce decree:
1. How long have you been married?

Generally, you must have been married for at least two years before you can petition for divorce. However, you may
apply to the court for permission to file a petition before two years have elapsed if there are special circumstances
which justify the making of such an order.
2. How long have you been separated?

You must be separated from your wife or husband for at least 12 months before you can petition for divorce. That 12month period of separation could have occurred within the first year of marriage; and a couple may be separated
while living under the same roof.
3. What is the reason for your separation?

You no longer need to prove that one party to the marriage caused the breakdown of the marriage through infidelity,
cruelty, desertion, etc. However, you must satisfy the court that the marriage has broken down irretrievably and that
there is no likelihood that cohabitation will be resumed. In establishing these facts, you will be required to briefly state
the reason for the separation.
4. Have you attempted counselling and reconciliation?

The court is entitled to ask whether the parties attended counselling and attempted reconciliation; so it is advisable to
explore these matters before filing the petition for divorce.
5. Do you have children?

If you have children who are under 18 or 21 years old, and attending a tertiary institution, the court will only grant the
divorce if the judge is satisfied that adequate arrangements are in place for their care. Questions will arise regarding
living accommodations, school arrangements and maintenance when this assessment is being made.
6. Are you entitled to file your petition in the Jamaican court?

The Jamaican Supreme Court will only entertain petitions where either party is a Jamaican national, domiciled in
Jamaica or ordinarily resident in Jamaica for at least 12 months immediately preceding the presentation of the
petition.
7. Do you have an original Marriage Certificate?
The original marriage certificate will need to be presented to the Court when the application is being made for
the Decree Nisi.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send
questions and feedback to lawsofeve@yahoo.com orlifestyle@gleanerjm.com.