What’s 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; a 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.

DIVO 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.

By virtue of section (5) of the Matrimonial Causes Act, there is only one ground required to show reason for the divorce and that is, that the marriage has broken down irretrievably. It follows that if the Court is not satisfied that there is an 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.

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.

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In this article, we examine the processes and intricacies involved in obtaining a divorce in Jamaica.

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 Process

Separation

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. The 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 new Civil Procedure Rules, 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 refiled.

Step 2 – Applying for Decree Nisi

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. What seems like 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 weeks after 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 months for the application to be placed before the judge.

If the couple has been married for less than two years there are some changes 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 which 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 ‘throw in the towel’. 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. These situations do not occur frequently.

Possible Delays

The registrar of the Supreme Court vets and corrects each and every petition for dissolution of marriage before it is signed and returned to the attorney for service on the respondent. This process could take as little as three weeks or as long as eight weeks.

If there are errors in the petition, the registrar will notify the attorney so that the errors can be corrected and the petition resubmitted for signing. The time period for the completion of this process cannot be easily determined, as the petition could then go to the back of the queue before it can get signed.

3. When the application for the first order in the divorce proceedings (decree nisi) is filed, there is no formula for determining when it will be submitted to a judge for consideration. It could take as long as three months for the documents to reach the hands of a Judge. Some attorneys have resorted to having the matters heard in open court rather than waiting for them to be considered on paper.

The address for the Supreme Court of Jamaica is Public Building East,Barry St, Kingston, Jamaica.

FREQUENTLY ISSUED REQUISITIONS WHEN PROCESSING DIVORCE DOCUMENTS

Divorce documents are processed in accordance with the provisions of the Matrimonial Causes Act, the Civil Procedure Rules, 2002 (Amended) and various Practice Directions. Draft Forms were amended by the Rules Committee.

Please see Prescribed Form as Amended (Jamaica Gazette No.49 of 2015 and No.49c)

General Requisitions

1. Failure to conform to the wording of the Prescribed Forms, particularly standard paragraphs.
2. Failure to comply fully with requisitions issued or to comply at all.
3. The name of Petitioner/ Respondent does not correspond with what is presented on the marriage

certificate.

4. The place of marriage and the name of marriage officer do not correspond with what appears on the

marriage certificate.

5. The names of the Petitioner, Respondent or relevant child(ren) are not consistent throughout all the

documents filed.

6. The date of birth of relevant children is not consistent throughout the documents filed.
7. Jurat of Affidavits are defective i.e not signed, dated and place sworn is missing.
8. The Justice of the Peace does not write out his/her name or indicate the parish to which he/she is

assigned

9. The dates of particular documents are not correctly stated or referred to.
10. Failure to serve the Respondent/Respondent’s Attorney with the Notice of Application to Dispense

with Hearing and the Supporting Affidavit where an Aknowledgement of Service is filed.

11. Failure to file a County Clerk Certificate to verify the commission of the Notary who witnessed

Affidavits where such Affidavits are sworn in a non-commonwealth country.

12. Not including an e-mail address in the footnote of the documents.

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Petition

13. The parties have not been separated for a year prior to the date of presentation of the Petition. See

section 5(2) of the Matrimonial Causes Act.

14. Where the Petitioner or Respondent is a female – failing to state how the person is described in the

marriage certificate.

15. Where the female does not take the name of the husband, failing to state that the said person did not

take the name of the husband.

16. Where parties continue to reside in the matrimonial home, albeit being separated – not adequately

describing the nature of separation to satisfy the Court that the parties are living separate and apart.

17. The Petition is not signed or dated.
18. Not stating the marital status of the parties at the time of the marriage.
19. Omitting the date of separation or not stating the said date clearly in the petition.
20. The name of the marriage officer and the place of marriage are not consistent with what is stated on

the marriage certificate.

21. To state the address the parties resided as husband and wife and since when.
22. State whether there were any attempts made at reconciliation.
23. The address for service of the Respondent is not the same as the address provided for the Respondent

in the body of the Petition.

24. No Acknowledgement of Service Form filed or only one Acknowledgement of Service Form filed.

Affidavit Accompanying Petition

25. Name and date of birth of the relevant child/children not stated or is stated incorrectly.
26. Failure to state how each party contributes financially to the maintenance of the relevant

child/children.

Affidavit of Service

27. Process Server is to state his occupation to determine the eligibility of the person to serve. Police

officers are not permitted to serve civil documents – See Section 13 of the Constabulary Force Act.

28. Dates of the documents served are incorrectly stated (especially the date of the Petition which is often

confused with the date of the Notice to the Respondent).

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29. Failing to state the reason service was effected on the Respondent at an address different from the

address provided for the Respondent in the Petition.

30. Failing to file original photograph where respondent was identified by means of a photograph.
31. Where the respondent was identified by means of personal knowledge, Process Server failing to state

whether he/she knew the respondent to be the spouse of the petitioner and for how long.

Affidavit of Search

32. The date the search was done is missing.
33. The search must be sworn and filed on the same day on which the search is conducted.
34. The period of the search is missing.
35. Jurat incomplete.

Notice of Application to Dispense with Hearing

36. The date of service is incorrect.
37. The date of the marriage is incorrect.
38. The relevant provision of the CPR being relied on is not stated in the ground.
39. Where an amended petition is filed after service of the petition, failure to include a request for an

order to dispense with service of the Amended Petition.

40. Not including or correctly stating the period of time within which an Acknowledgment of Service or

Answer is to be filed.

Affidavit in Support of Notice to Dispense with Hearing

41. The date of separation and the circumstances that led to the breakdown of the marriage does not

accord with what is stated in the Petition.

42. The original marriage certificate (in the new format) is to be filed/ exhibited to this Affidavit.
43. Failing to state whether any attempts were made at reconciliation.

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44. Where the Petitioner is present at the time of service, failing to state that he/she was present and that

he/she pointed out the Respondent to the Process Server as being his/her spouse.

45. The information with regards to the relevant child (ren) is not updated or is inconsistent with the

information in the Affidavit Accompanying Petition.

Decree Nisi

46. The name of parties/relevant child(ren) and date of birth/place of marriage incorrect.
47. Paragraphs 2 and 4 are not worded in accordance with Form MP.8 of the 2015 Amendments to Part 76 of

the Civil Procedure Rules as Amended.

48. Insert in brackets after the Petitioner’s/Respondent’s name the following ( described in the marriage

certificate as…) in cases where the names appear different on the marriage certificate.

49. Inclusion of orders for custody and access where none was prayed for in the Petition or not including the

said orders where same has been prayed for and granted by the Court.

Notice of Application for Decree Absolute

50. Pre-mature applications. Applications filed before the expiry of the 6 weeks from the date of the

Decree Nisi.

51. Application not dated.
52. The date of the Decree Nisi incorrectly stated.
53. The name and title of the Judge or Master who granted the Decree Nisi is;

(a) Incorrectly/ incompletely spelt or

(b) The wrong name stated

Affidavit of Search

54. The date of the Decree Nisi incorrectly stated.
55. Period of Search not included.
56. The date search was conducted, the date the Affidavit was sworn and filed not corresponding.

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57. Jurat incomplete.

Affidavit in Support of Notice of Application for Decree Absolute

58. Copy of signed Decree Nisi not exhibited.
59. The date of the Decree Nisi incorrectly stated.
60. The name and title of the Judge or Master who granted the Decree Nisi

(a) Incorrectly/incompletely spelt or

(b) The wrong name stated.

61. Names and dates of birth of relevant child/children not correctly stated.
62. Arrangements for the relevant child/children not properly set out or updated.
63. Prayer at the end of Affidavit not included.
64. Jurat incomplete.

Decree Absolute

65. The date of the Decree Nisi incorrectly stated.
66. The name and title of the Judge or Master who granted the Decree Nisi (c) Incorrectly/incompletely spelt or

(d) The wrong name stated

67. Wife’s name as described in marriage certificate not properly stated or stated at all.
68. Date and place of marriage incorrectly stated.
69. Amendments to marriage certificate not observed.

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