Jamaica Gleaner
Published: Sunday | November 23, 2008
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Divorce cases clog judicial system
Avia Collinder, Sunday Gleaner Writer

The Supreme Court in Kingston handles divorce cases. - File

AMENDMENTS TO the Matrimonial Causes Act in September 2006 and the resulting procedural changes have caused a backlog in divorce cases filed in the Supreme Court.

The clogged chamber, The Sunday Gleaner understands, is causing great hardships for divorcing Jamaicans, many of whom wish to remarry and sort out their financial affairs, but are unable to do so.

A 42-year-old administrative assistant in Kingston says she filed for divorce 13 months ago and is still waiting for the annulment to be finalised.

"All I keep hearing is that there is no judge to sign. It's affecting me because I want to move on with my life and my ex-husband wants to move on with his life," the woman says. "My lawyer tells me there is nothing she can do. I was told that after I got the decree nisi, I would have to wait another six weeks to get the decree absolute, but it's long overdue. This is also affecting me financially," she adds.

In September 2006, the amendment of the Matrimonial Causes Act, following on the Privy Council ruling in the Eldemire and Eldemire case, meant that divorce cases were no longer held in chambers, but were to be granted on the basis of documents presented in the case file.

Opposite happening

The change was intended to make divorce an easier process, but instead, the very opposite has happened, with increasing com-plaints by those affected.

"I have been having some delays and my clients are not pleased at all. They have been calling on a regular basis," attorney-at-law Keith Bishop confirms.

Margarette Macaulay, another Kingston-based attorney-at-law says, "Every single lawyer that I know has had problems."

Macaulay believes the cause of the backlog is rooted in the lack of preparation and training in response to the legal change in 2006.

"Basically," says Macaulay, "we have new rules being applied by old minds. People have been, for years, operating under the old rules and all of a sudden, the new rules were just put in place without any notice."

Data from the Statistical Institute of Jamaica (STATIN) indicate that in 2007, divorces plunged in number to 1,140, coming from 1,768 in 2006 and 1,806 in 2005. However, the STATIN researchers note that the smaller number of divorces absolute does not represent an actual decline, but is due to changes in the Matrimonial Causes rules, which have caused a considerable backlog in divorce petitions.

Some lawyers have suggested to The Sunday Gleaner that judges be assigned solely to divorce duties on particular days of the week, otherwise the backlog will not be cleared.

The problem was first reported in December 2007 when Chief Justice Zaila McCalla admitted that something needed to be done. But, one year later, the complaints are only getting louder.

A 32-year-old computer programmer filed for his divorce in November 2006 through the Kingston Legal Aid Clinic.

"I don't get it yet. I went to Legal Aid because I didn't have a lot of money. The lawyers drafted documents and sent them to court," he relates. "Apparently, the documents were misplaced. Most of the times I call, the documents are not in place. This went on months, until a year has passed. Then I had to refile in November 2007. This time, they sent over the documents and I served the papers on my wife. I am now awaiting the signature from the judge. They say there are no judges. It's ridiculous!," he exclaims.

Attorney-at-law Keith Bishop says he can't always say the delays are as a result of the judge not signing, as other problems might lie in the improper preparation of documents.

Another problem notes Mccaulay is that the amended rules are being enforced "to the letter rather than being enforced as the law requires, as was decided by the Privy Council in Eldemire and Eldemire. One should not impose and apply rules in every case. You look at the needs of a particular case," she says.

Old rules, new rules

Under the old rules, in order to get a decree nisi, the petitioner gives evidence in open court and the judge could decide to grant the decree nisi or not. Under the new rules, petitioners apply for appearance to be done away with and for a decree nisi to be granted on the basis of the file presented.

Today, documents are filed and petitioners wait to get a response. The requirement for supplemental affidavits also slows down the process.

"You have a requirement that further documents are to be filed to state that the couple has had counselling. This is because the rule states that it should be shown whether they have had counselling. In some cases this is not necessary," says Mccaulay.

Divorce Jamaican style

The legal process for annulling a marriage usually lasts four to six months from the stage of first filing to the granting of the decree nisi and then the decree absolute, at which point the divorce is final. The decree nisi is the first phase in the two-step divorce process in Jamaica. "When it is granted, it is just to say that the court has initiated the process. It will not be made final (absolute) until an application is made six weeks later for the decree absolute," attorney at law Keith Bishop explains. The waiting period is intended to facilitate any change of mind or reconciliation. A court, however, can give an order to waive this six weeks waiting period. Locally, marriage is governed by the Marriage Act and the legal dissolution of a marriage falls under the Matrimonial Causes Act, which was passed in 1989 and which replaced the Divorce Act. This act was further amended in 2006 to permit the granting of divorce decrees without a court hearing. Petitions for decrees of dissolution of marriage and applications for orders in Matrimonial Causes filed under this act fall within the jurisdiction and power of the Supreme Court of Judicature of Jamaica. Under Jamaican law, a valid marriage may be terminated only by the death of one of the parties or by a decree of dissolution or divorce (decree absolute) pronounced by a court of competent jurisdiction. According to Section (5) of the 1989 Act, there is only one ground for divorce and that is, the marriage has broken down irretrievably.

The court must be satisfied on this count. Either party to the marriage may apply to obtain a decree for the dissolution of the marriage.

In establishing to the court's satisfaction that there is irretrievable breakdown of the marriage and a decree nisi is warranted, the petitioner must satisfy the court that they have separated and thereafter have lived separately and apart for a continuous period of not less than 12 months before the date of filing the divorce petition. A petition for divorce should not be presented unless at the date of filing, two years have passed since the date of the marriage. However, under special circumstances, a petition for a divorce may be presented within less than two years of the marriage.

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