McGregor
The common theme throughout the last three articles has been 'dissolution of marriage' using petitions for divorce or petitions for nullity. To complete the series, this week's article will focus on the steps which may be taken to dissolve a marriage if there is reasonable ground to believe that the other party to the marriage has died.
Petition for dissolution of marriage
Section 9 of the Matrimonial Causes Act allows a party to a marriage to file a petition to have it presumed that the other party is dead and to have the marriage dissolved. In order to do this, the petitioner must present facts which satisfy the court that the respondent has been absent for a continuous period of seven years, or more, and that the petitioner has no reason to believe that the respondent had been living during that time.
Based on my research, these applications were common during wartime, when female petitioners had to make such petitions in order to dissolve marriages with soldiers, who had disappeared at war. In Jamaica today, with the startling number of missing persons reports in the press, there may well be an increased necessity for making these types of applications.
How to proceed
Once the petition is filed, the petitioner may apply to the court for an order permitting service on the respondent by advertisement in the area in which the respondent was last seen. However, if it is shown that service by advertisement will prove useless because it is very unlikely that the petition will ever come to the respondent's knowledge; the court may order that service be dispensed with.
In all other respects, a petition for divorce on the ground of presumption of death will be similar to the usual petition, including the fact that the wife may apply for maintenance. Of course, this may seem a little absurd; since the basis of the application is that the respondent cannot be found. How then will a maintenance order be enforced?
In the English case of Deacock v Deacock, the wife and husband got married in Greece, before he went to his home in England and never returned to Greece. He then petitioned to dissolve the marriage on the ground that he presumed that his wife had died. The wife learnt of the divorce after her husband had married another woman, and applied to the court for maintenance against her husband. The maintenance order was granted because the court found that the wife had made her application for maintenance within a reasonable time after she had learned of the dissolution of the marriage.
In a case in which one spouse discovers that a decree nisi has been granted on the basis of a presumption that he or she has died, an application may be made for the decree nisi to be rescinded. This is because the court only presumes the death of the petitioner based on the facts presented. If it is later revealed that the respondent is alive, before a final divorce decree is granted based on a presumption that he or she is dead, he or she may apply to rescind the decree.
There is no provision for an application of this nature to be made prior to the expiration of a seven-year separation.
Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback
and comments to lawsofeve@yahoo.com.
