Mcgregor
An unhappy wife wrote to us saying she got married earlier this year, but already wants to get out of the marriage. She said her husband has become intolerant, verbally abusive, and has threatened to leave the home if she does not conform to his wishes. She wants to know whether she has to be separated from her husband for 12 months before she is able to file for a divorce.
A decree for dissolution of marriage will only be granted if the court is satisfied that the parties have lived separately and apart for a continuous period of at least 12 months immediately preceding the date on which the petition for the decree is filed. If the parties had been married for at least two years at the time the petition is filed, and they are able to show that the marriage has broken down beyond reconciliation and that there is no prospect of resumption of cohabitation, the decree would be granted without much difficulty.
The question which this unhappy wife asked might well have occurred to Beenie Man or D'Angel. Can the petition for divorce be filed within the first two years of marriage or before the parties have been separated for 12 months?
According to Section 8 of the Matrimonial Causes Act, a petition for dissolution of marriage can be filed within the first two years of marriage if the petitioner (person applying for divorce) obtains the court's permission to do so. On such an application, the court will grant permission if:
The couple attempted reconciliation with the assistance of an approved marriage counsellor; or
There are special circumstances that would justify the hearing of the petition.
The application must be supported by an affidavit. If any relevant facts are concealed or are later proven to be inacurate, the court has the option of dismissing the petition or granting the decree nisi. If the decree nisi is granted, it may be on condition that no application for decree absolute will be entertained until two years have passed since the date of marriage. If the petition is dismissed, the court may allow the petitioner to file a new petition when two years have passed since the date of the marriage.
A decree for dissolution of a marriage may be refused if the court determines that reconciliation is likely, it is quite possible that the application to file a petition in the early years may be refused. However, abuse, impotence of one party or wilful refusal to engage in sexual intercourse, may amount to special circumstances which justify the presentation of a petition in the early years. The best advice to the unhappy wife would be to see a marriage counsellor before consulting a divorce lawyer.
Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.
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.
