A Family Court judge has called for the consideration of changing the onerous statutory conditions that must be met for the court to approve a fully contested divorce.
Delivering a rare written judgement in such a case late last month, Justice Allyson Ramkerrysingh used the opportunity to highlight the “obscurity” of holding on to fault-finding facts when the grant of a decree nisi is almost guaranteed.
“It may even be considered absurd where, as in the case before me, it is obvious that the marriage has ended, but one party insists on dragging the marriage on to its inevitable demise, and if the Petitioner fails to satisfy the court that the Respondent’s actions amounted to desertion, intolerable behaviour, or adultery, the years it can take to qualify for the five-year separation fact, seems wastefully long and bitter indeed,” Ramkerrysingh said.
Justice Ramkerrysingh cited Section 4(1) of the Matrimonial Proceedings and Property Act, which set the conditions that must be strictly applied by the court.
Under the legislation, a divorce can only be granted if the petitioner is able to prove that their spouse committed adultery, is intolerable to deal with or has deserted the relationship for two years. If the respondent consents to the divorce, the couple must have lived apart continuously for two years before making the application.
If the petition is contested by the spouse and the petitioner cannot prove the cited issues in their relationship, the divorce can only be granted if they have lived apart continuously for five years.
Justice Ramkerrysingh suggested that the provisions could be considered draconian.
“Thankfully, the scenario before me does not happen often, but it presents the argument for doing away with the fault-finding facts altogether, so as to avoid the emotional or psychological torment of remaining in a marriage that is nothing more than a shell, for how many years it would take to meet the requirements of the five-year separation term,” she said.
“It seems pointless to delay an outcome that is inevitable...Unit Parliament does away with the fault-finding facts, we have to live with this less than desirable reality,” she added, as she noted that the court is tasked with the responsibility of applying a subjective exercise to achieve an objective outcome.
In the case before her, Justice Ramkerrysingh granted the husband’s application, which was opposed by his wife, who claimed that the marriage could be salvaged.
To do so, she had to undertake an extensive analysis of the couple’s turbulent marriage, which began in 2003 and produced three children.
The identity of the couple and the circumstances of their divorce were withheld by this newspaper based on the sensitive nature of the legal process and the allegations made by both parties.
The husband was represented by Jennifer Farah-Tull, of Hove and Associates, while Alexei Mc Kell represented the wife.
Child Advocates Rachel Thurab, Dominique Bernard and Candice Alexander represented the interest of their children.
