The month of May is Child’s Month and under The Child Care And Protection Act, a child is defined as a person under the age of eighteen years. Many persons are not aware that there are laws to protect the rights of a child and this week we want to examine some of the rights that our children.
A common-law relationship is possibly the most prevalent form of committed relationship in Jamaica. Many individuals opt out of walking down the aisle to marry their significant other because of fear of commitment yet their day-to-day activities is similar and in likeness to that of a married couple. The main fear indicated by many is the thought that if they live together and eventually separate, there will be no need for division of property. This is a common misconception as there are laws to protect parties who have been in a common law union.
Section 2 of The Property (Rights of Spouses) Act defines “spouse” as including a single man and a single woman who have been cohabiting together as if they were in law husband and wife for no less than five years. The term ‘cohabit’ is defined as meaning, ‘to live together in a conjugal relationship outside of marriage’.
A will is a document that states who gets your property upon your death and who will manage your estate. It is probably the most important document that you will ever sign.
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)
It is probably a logical conclusion to assume that once a child is born, the persons who have come together to create a life should endeavour to provide for that life. This however is not the case and unfortunately many children simply are not given the financial assistance they require for their growth and development from both parents.The law is straightforward when it comes to this subject.
Under the Maintenance Act (2005), every parent has an OBLIGATION to maintain the parent’s unmarried child who- (a) is a minor; or (b) is in need of such maintenance, by reason of physical or mental infirmity or disability. It is important to note that the grandparents may also have this duty in the event of the failure of the child’s parents to do so owing to death, physical or mental sickness or disability.
Once a parent neglects his or her responsibility to the child, you should not be afraid to seek maintenance for that child. Below are six steps in applying for maintenance:
- An application for child maintenance can be made at the Manchester Parish Court located at 2 Parks Crescent in Mandeville or any other Parish Court across the island. It is recommended that you ask an Attorney-at-Law to file the application on your behalf but you can also do this on your own.
- If you are applying on your own, speak to the Clerk of Courts who will process the documents.
- The court will issue a summons (a court document instructing a person against whom the claim is brought) informing them of the date they should attend court to hear the matter. Also included in the summons will be how much the applicant is requesting as payment for child maintenance.
- The summons is served on the individual. If the person cannot be located, then the matter will not be able to go before a Judge. However, if the summons is served and the person refuses to attend court on the date specified in the summons, then a warrant will be issued for their arrest.
- Once the summons has been served, both parents should appear in court on the appointed date and present their case before the Judge.
- The Judge, in considering the best interests of the child will proceed to make an order regarding maintenance and the amount which should be paid, how it should be paid, and when it should be paid- weekly, fortnightly or monthly.
Don’t be afraid to seek Maintenance in the best interest of your child.
Written by: K. Whittaker