Jamaica Gleaner - - LAWS OF EVE - Sherry Ann McGre­gor is a Part­ner and Me­di­a­tor in the firm of Nunes, Sc­hole­field, DeLeon & Co. Please send ques­tions and com­ments to or life­style@glean­

A READER asked for an­swers to sev­eral ques­tions about get­ting di­vorced. I have set out the ques­tions and the an­swers be­low.


Will a di­vorce be granted if the par­ties are sep­a­rated and still both in­dulge in sex­ual ac­tiv­i­ties?

A: When the word ‘sep­a­ra­tion’ is used in the con­text of di­vorces, it does not mean that the par­ties have to re­side in two dif­fer­ent homes and, ac­cord­ing to Sec­tion 6 (2) of the Mat­ri­mo­nial

Causes Act, “The par­ties to a mar­riage may be held to have sep­a­rated and have lived sep­a­rately and apart not­with­stand­ing that they have con­tin­ued to re­side in the same res­i­dence or that ei­ther party has ren­dered some house­hold ser­vices to the other.”

The par­ties must be sep­a­rated for at least 12 months in or­der to get di­vorced, but Sec­tion 7 of the act states that “... no ac­count shall be taken of any one pe­riod (not ex­ceed­ing three months) dur­ing which the par­ties re­sumed co­hab­i­ta­tion with a view to rec­on­cil­i­a­tion”.

It is, there­fore, pos­si­ble that par­ties could en­gage in sex­ual in­ter­course dur­ing the pe­riod of their sep­a­ra­tion and still re­main sep­a­rated. How­ever, the spe­cific facts of each case must be ex­plored to as­cer­tain whether the re­sult­ing in­ter­rup­tion of the sep­a­ra­tion is sub­stan­tial. (The case of

Heron-Muir v Heron-Muir FD00144 of 2004 judg­ment de­liv­ered on Oc­to­ber 21, 2005 is an ex­am­ple of a case in which the is­sues sur­round­ing sep­a­ra­tion were ex­plored).


If both par­ties at­tended coun­selling and one party states that he is not in­ter­ested in rec­on­cil­ing, can they still get a di­vorced?


Yes. Sec­tion 6 (1) of the act states that,

“The par­ties to a mar­riage may be held to have sep­a­rated not­with­stand­ing that the co­hab­i­ta­tion was brought to an end by the ac­tion or con­duct of one only of the par­ties.” The par­ties do not have to agree to get di­vorced.

How­ever, sec­tions 11 and 12 of the act state that the court shall give re­gard to the pos­si­bil­ity of rec­on­cil­i­a­tion, even if only one party ex­presses the de­sire to rec­on­cile. In that case, the di­vorce pro­ceed­ings may be ad­journed while the judge in­ter­views the par­ties, al­lows them to speak or nom­i­nates a coun­sel­lor to as­sist the par­ties.


Should the hus­band still take care of the wife even though they are sep­a­rated?


The Main­te­nance Act pro­vides that (dur­ing the mar­riage) each spouse, in so far as he or she is ca­pa­ble, has the obli­ga­tion to main­tain the other to the ex­tent nec­es­sary to en­able that spouse to meet her or his rea­son­able needs. Pur­suant to Sec­tion 23 of the Mat­ri­mo­nial Causes Act, ap­pli­ca­tions for spousal main­te­nance while di­vorce pro­ceed­ings are pend­ing and even af­ter they have ended.


Af­ter re­ceiv­ing the pe­ti­tion, does the re­spon­dent have a right to be heard?


In di­vorce pro­ceed­ings, a re­spon­dent may trig­ger a hear­ing by fil­ing an An­swer to the Pe­ti­tion. Once that An­swer is filed, the court will sched­ule a Case Man­age­ment Con­fer­ence, af­ter which the di­vorce pro­ceed­ings will be heard in open court.


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