Last week in response to several letters, we began discussing the procedures for getting a divorce. We have already mentioned the procedure as it relates to Section eight of the Matrimonial Causes Act, so this week we will look at how to apply for divorce.
The procedure for the filing of the divorce is found in Part 76 of the Civil Procedure Rules, 2002. The procedure for dissolution must be commenced by petition, which requires information generally known to any of the parties in a marriage. If there are relevant children who are minors, the petition must be accompanied by an affidavit setting out the arrangement for care, maintenance, education and upbringing of the relevant children.
Jurisdiction without permission
When the petition is signed by the petitioner, it is filed at the registry of the Supreme Court. It is then given a number to distinguish it and the copy to be served on the respondent must bear the seal of the Supreme Court and certified to be a true copy. The petition must be served personally on the respondent. If the respondent cannot be located to effect personal service, upon an application to the court, permission may be granted for substituted service. ....The petition and other related documents may be served out of the jurisdiction without permission of the court.... A respondent who is served with a petition may file an 'Acknowledgement of Service' within 14 days. Within 28 days of being served, the respondent may file an 'Answer or An Answer with Cross Petition'. Where an 'Answer or Answer with Cross Petition' is filed the matter will be set by the registrar for case management conference where a date will be set for hearing.
Filing an application
Where the respondent has not filed an 'Answer or Answer with Cross Petition', the matter may proceed in default with the petitioner filing an application to dispense with the hearing of the petition in court. By this process (application on paper), the petitioner would not be required to attend court. In fact, the documents would just be handed by the registry to a judge who would grant the Decree Nisi and, if necessary, certify the arrangement for the child as the best that may be devised in the circumstances or make such order for the care, custody and maintenance of the child.
It must be noted that the marriage is not dissolved until the Decree Absolute is granted. The petitioner must wait six weeks from the granting of the Decree Nisi to apply for the Decree Absolute. Any person who presents evidence to the satisfaction of the court that there are reasonable grounds why the Decree Nisi should not have been granted, could have it set aside.
If there is no problem or delay in the drafting, processing or service of the relevant documents and provided that the respondent has not filed an 'Answer or Answer with Cross Petition', I estimate that the Decree Absolute should be granted within six months of the filing of the petition.
Finally, while it is fair to say that most persons can personally access file documents or claims in the Supreme Court, it is not advisable or prudent for a petitioner to pursue his or her own petition having regard to the requirements to draft and file documents. An attorney-at-law is your best choice.
Keith N. Bishop is an Attorney-at-Law and partner in the firm of Bishop & Fullerton. He may be contacted by email at firstname.lastname@example.org or email@example.com