Mcgregor

Some familiar questions have been asked in response to last week's article, 'Remarried before divorce was final'.

How do I dissolve a bigamous marriage? and;

Is the procedure any different if I have been married for over a year?

It is worthwhile to start by stating that bigamy is committed if one of the parties to a marriage had a wife or husband living at the time of the second marriage. According to section 4 of the Matrimonial Causes Act, a bigamous marriage is void and a decree of nullity of marriage may be pronounced by the court on that ground.

The Matrimonial Proceedings Rules set out the procedure for obtaining a decree of nullity. For the most part, it is similar to the procedure for dissolving any marriage.

Filing a petition

A petition will need to be filed stating the following:

Names and occupation of the parties, as well as the dates and places of their birth

Date and place of the marriage

Name of the marriage officer who performed the ceremony

Whether the parties are Jamaican nationals, domiciled or resident in Jamaica

The place(s) the parties lived

Details regarding the children (if any) and arrangements for their maintenance, custody.

In a Petition for Decree of Nullity, there is no requirement to state that the bigamous marriage has broken down irretrievably. Instead, there must be a statement regarding the basis upon which the court is being asked to grant the decree of nullity, eg, one of the parties to the marriage had a wife or a husband living at the time of the marriage.

There is no need to indicate whether the parties have separated or are likely to resume cohabitation. Most important, there is no requirement that the parties must have been married for at least two years before the petition can be filed. It is also helpful to note that, although the bigamous marriage is void, the court is still obliged to entertain applications for division of property, as well as maintenance and custody of children.

After the petition has been filed, it must be served on the respondent, who is entitled to acknowledge service and file an answer. The matter will either be tried if an answer is filed, or proceed in default if there was no answer. In either case, the court will usually grant the first order, a decree nisi. This will state that the marriage is 'declared to have been by law null and void'. In other words, the marriage will be treated as if it had never occurred.

Final order

Six weeks after the decree nisi is granted, an application may be made for the final order; the decree absolute. This order will be granted unless the court is satisfied that there is some basis for refusing to do so.

The answer to the second question is that the procedure remains the same regardless of the length of the marriage.

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 or Lifestyle@gleanerjm.com.