Am I legally divorced or not?

All Woman

Dear Mrs Macaulay,

I'm in need of help understanding if I'm legally divorced or not. I was never served any court documents that my husband filed for a divorce. I was told by the woman that he lives with that he divorced me years ago. He told me that he filed for divorce but he does not know if it went through because he owes his lawyer money. On one of my trips to Jamaica last year, I was scrolling through his phone when I saw a picture of the divorce decree that was granted in 2014. I took a picture for myself. When I asked him about it he said he never really thought it would go through.

Then I started reading through the decree and I realised that it reads that there were no children born to our marriage, which is a lie. We have one child who was born in 2007. Please help me to understand if this divorce is legitimate due to the fact that I wasn't served, and the lies contained in the decree.

From your statements regarding your visits and the fact that you were in a position to scroll through your husband's telephone, it seems to me that your husband caused you to believe that your marriage was still intact, while he had filed for a divorce without your knowledge.

This raises the question of whether you and he had separated and lived separate and apart for a period of 12 months immediately preceding the filing of his petition.

It seems to me that you were not separated even at the time you found the picture of the decree. You did not say whether it was a decree nisi or a decree absolute. However, in the final analysis, it does not matter because of the fact that he would have deceived the court from the inception of his petition.

In order for the court to have jurisdiction to entertain the petition, he had to plead that you and he were separated and had not lived as man and wife since that separation occurred, to the date of his signing of the petition. This alleged and pleaded separation must be for at least a period of 12 months immediately preceding the date of his petition. He also has to plead in the petition what caused the separation and that there was no chance of a reconciliation, and that attempts at counselling had failed or been refused.

The petition also has to state clearly whether there was any child born of the union and if so, the full name and date of birth. In the relief section, it ought to state the claim being made in relation to the child. The petition certifies that statements made in it are true to the best knowledge of the petitioner.

In the circumstance where there is a child, an affidavit of the arrangements for the child must be filed in support of the petition. In it the petitioner must describe where and with whom the child resides and the living conditions there, then the arrangements for the child's upbringing, the provision of maintenance, and including the current and future schools being attended and intended to be attended, and that the child is receiving religious education and where. It must also state whether the child suffers from any health ailments and, if so, whether it is chronic and/or serious or not. The affidavit must also state who has the day-to-day care of the child and who will have legal custody, or if this will be joint or not.

It seems that your husband, apart from his deception about being separated and being so for at least 12 months, also lied in his petition that there was no child of the marriage, both of which are very serious deceptions intended to mislead the court. Apart from these, there is also the fact that in order for the decree nisi to be granted, an affidavit proving that you had been served with the petition on a certain date must have been filed, with the facts required in law to satisfy the judge that you had been served. According to you, you have never been served so this sworn document in the proceedings was also false.

You ask whether the divorce is legitimate. Well it is clearly not, based on the facts which you allege are false. BUT, on the face of it, it is legitimate. The burden rests with you to act to rectify the situation by applying that the decree nisi and all subsequent processes and orders be set aside, especially because of your child whose arrangements for upbringing the court has to examine and decide whether it is satisfied with them. In fact, no court, when there is a minor child, grants a decree without being satisfied about the living and provision arrangements for the child or children of divorcing couples.

I do not know whether you went to the Supreme Court Civil Registry and obtained a copy of your husband's petition and supporting documents which resulted in the decree you have a picture of. You should obtain the services of a lawyer to act for you, to obtain all the documents if you do not have them, and prepare and file your application to have the whole thing set aside. Since you made your discovery only last year you should act this year, but try to do so quickly. You owe it to your child and to yourself to set this dissolution obtained through multiple falsities aside. Then you must decide what you will do about your marriage by having a full discussion with your husband, who seems to have been having his cake and eating it. There may also be your property interests due to implications of time which could adversely affect you making, and how you have to make your claim for your share.

Please therefore act as quickly as you can to protect your interests and those of your child, whose very existence he has denied by his petition. You certainly have more than sufficient grounds to succeed in having the decree nisi and all processes filed and orders made thereafter set aside. It is up to you to do the right thing and act.

Good luck.

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.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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