During a divorce or separation, the question of matrimonial property division often arises as couples tend to argue about who spent more money when building the house or paying the mortgage and would therefore be entitled to be a bigger stake of the house. Matrimonial Property is defined in the Property (Rights of Spouses) Act (PROSA) as “any real or personal property, any estate or interest in real or personal property… or any other right or interest whether in possession or not to which the spouses or either of them is entitled.” From this definition, it is clear that property is not defined to mean only the family home. The only thing the law has done in relation to the family home, and not in relation to other property, is the presumption that that there be the automatic application of equal division or the “50-50 rule” unless good grounds exist to warrant a deviation from it (section 6 of the Act).
For divorce proceedings to start there are certain requirements which must be satisfied. In Jamaica, the only ground for a divorce is the irretrievable breakdown of the union. It is important to note that the parties would have to be separated for at least twelve (12) months.
There are generally three phases to a divorce:
- The “Petition” stage,
- The “Decree Nisi” stage, and
- The “Decree Absolute” stage.
A lawyer representing the Petitioner will lodge, at the Supreme Court, the Divorce “Petition” outlining that the marriage has broken down irretrievably along with the “Affidavit Accompanying Petition” which is a statement concerning the arrangements for the children (under age eighteen (18) years or who are under twenty-three (23) and are attending a tertiary institution) and the “Acknowledgment of Service” AOS, which is a form/questionnaire for the Respondent (other party). The AOS is filed and served on the Respondent with the other documents.
Service of the documents is very important in Divorce cases, as it is imperative that the other party is made aware of the proceedings commenced to terminate their union. Personal service is the standard, meaning the documents are given directly to the other party, but this cannot be done by the Petitioner, but preferably by a person unrelated to the parties. Where this is not possible, the lawyer for the Petitioner may apply for another method to be used, referred to as “Substituted Service.” This is service done by way of advertisements in a popular newspaper published in the town where the Respondent lives and/or service on a member of the Respondent’s family who would most likely be in touch with him/her.
An Application for the Decree Nisi will have to be made with accompanying documents which will be perused by the Court. If the Respondent does not contest the divorce, this means it is undefended and the Judge is then charged with the duty of reading through the documents to see if the Petitioner has proved their case, and if this is found to be the case, then a Decree Nisi will be granted.
The final stage to a divorce is the granting of a Decree Absolute. There is a waiting period of at least 6 weeks after the Decree Nisi has been granted before the Decree Absolute can be applied for. The granting of the Decree Absolute is the final nail in the coffin of the marriage. The marriage is thus dissolved.
Abi-Gaye White-Thomas B.A., LL.B (Hons)