Was my divorce obtained by fraud?

All Woman

Dear Mrs Macaulay,
I believe that I am a victim of divorce fraud and would like some clarification. I only received the decree absolute. I was never contacted about any of the proceedings (through any publication that I know of), was never summoned, and never even knew this process was taking place.

After speaking with the attorney whose name appears on the document, I suspect that they were aware of the fraudulent transaction. Their standoffish, peeved behaviour, plus accusations that I was initially in league with it, is what is leading to my assumption.

If a fraud is found, is there a way to just make the divorce official anyway? Frankly, I do want to be divorced from this man, but have neither the time nor necessary funds to file for same as he has migrated and “remarried”.

As you were served, be it by mail or hand delivery, with a copy of the decree absolute, this demonstrates the fact that your address was known to the attorneys who had carriage of the divorce petition proceedings — in other words, your “ex-husband's” lawyers. This being the case, you could have been personally served with the petition and supporting documents at your home. This clearly raises some questions about the failure to serve you. Was this intentional? Did the process server mis-state the facts about his or her service?

If you do wish to find out with certainty what happened, you ought to go to the Supreme Court Registry at the corner of King and Barry streets in Kingston and ask to search the file. Take the copy of the decree absolute with you, as they will need the number which it bears to conduct the search.

You can then see from the petition what address was put in it for you. Then you should also check the affidavit of search, read it through, and discover how the petitioner swore that you were served with the petition. This ought to inform you of the true facts. Having ascertained these, you can then decide what you wish to do about the matter.

You could, from what you discover, decide to accept the fact of the divorce having been properly obtained. On the other hand, you may have discovered that indeed the court was misled about you having been served when you were not, or that the court did make an order for substituted service on you by publications in a specific daily newspaper and that copies of the relevant pages were exhibited to the affidavit of service. In the latter case, if you did not see such publications there would be no fault or failure of service (save for the question of whether your address was known to your husband and his lawyers). If this was so, then you should have been personally served. You can in such a case speak with the deputy registrar who deals with divorce matters and tell her that you only received a copy of a decree absolute and could she please go through the file and determine whether the decrees nisi and absolute had been obtained by fraud.

If she decides this was so, and you wish do something about it, you will have to apply for the decree nisi and all subsequent processes and decrees to be declared null and void. The result would be as if the petition had never been filed and he would be your husband again and his “remarriage” would not be legal.

Or as I said, you can decide to do nothing and accept the decree as proof of your divorce as a fact and go on with your life.

You say you have no time or resources to pursue proceedings. If the divorce was fraudulently obtained, then the burden of correcting the situation is yours and no one else's. The decision is yours.

Think well and make your decision after you do your search in the Supreme Court Registry.

Good luck and best wishes for a happy and trouble-free life.

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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