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Obtaining a Jamaican divorce: Part I

Dear Readers,

Today we restart our special column for you offering legal advice, your 'Legal Eagle.' We look forward to getting your letters and emails which our Legal Eagle' Keith Bishop will look at and provide will needed advice. Send your letters to Legal Eagle, THE STAR, 7 North Street, Kingston, Fax to: 92-26223 or 948-1804 or email: star@gleanerjm.com and use the tagline 'Legal Eagle'.

WHAT IS THE process to obtain a divorce in Jamaica? Under Jamaican law a valid marriage may be terminated only by the death of one of the parties or by a decree of dissolution or divorce (Decree Absolute) pronounced by a court of competent jurisdiction. Therefore, where a spouse dies a divorce is not needed as the death ipso facto ends the marriage.

Divorce proceedings in our jurisdiction are governed by the Matrimonial Causes Act (The Act). Essentially, the dissolution of a marriage is a judicial act and so cannot lawfully be obtained by any other means otherwise than by a court hearing. Divorce proceedings in Jamaica are dealt with in the Supreme Court of Judicature which is the only court of competent jurisdiction.

One ground

By virtue of section (5) of the Act, there is only one ground for divorce and that is, the marriage has broken down irretrievably. It follows that if the Court is not satisfied that there is irretrievable breakdown of the marriage and so there is a reasonable likelihood of the parties resuming the marital relationship then the divorce will not be granted. Either party to the marriage who believes that the marriage has broken down irretrievably and so there is no likely prospect of reconciliation may apply to obtain a decree for the dissolution of the marriage. The application is by way of petition and so the applicant is the petitioner and the other spouse, the respondent. To start the process, it is advisable to seek the assistance of an Attorney-at-Law.

In establishing to the court's satisfaction that there is irretrievable break down of the marriage and a Decree Nisi is warranted, the petitioner must satisfy the court that they have separated and thereafter have lived separately and apart for a continuous period of not less than 12 months before the date of filing the divorce petition. Even where the parties may continue to reside in the same house or rendered some household services to the other, the Court may nevertheless find that the parties are separated and lived separately apart. It is the circumstances of the living arrangement that will be examined by the court in this regard to see if there is separation in fact and law.

As a general rule, a petition for divorce should not be presented unless at the date of filing two years have passed since the date of the marriage. However, under special circumstances a petition for a divorce may be presented within less than two years of the marriage. This will be examined in part 2.

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April 15, 2004
 

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