Divorce or the dissolution of a marriage, refers to the final and legal termination of a martial 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.
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 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. This 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 spouse’s behalf.
Getting An Attorney
Under the Jamaica Civil Procedure Rules 2002, 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 refined.
STEP 2 – Applying for Decree Nissan
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. However what may appear to be 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 (6) weeks after the 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 (2) months for the application to be placed before the judge.
If the couple has been married for less than two (2) years there are some differences 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 that 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 end the marriage. 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.