Till death do u part. That is how most of us would prefer our marriage to end, but unfortunately, that is not the case.  Several divorce and separation end with spouses fighting over everything from custody of children to pets.

Before delving into the discussion of prenuptial arrangements, it is important to establish the definition of spouse under the laws of Jamaica. Spouse in Jamaican law is not confined to a man and a woman who are legally married to each other. It also includes a single man and a single woman who has cohabited together as man and wife.T hey must cohabit for a period of at least 5 years.

When marriages break down and there are issues regarding division of properties, the court would rely on the Property Rights of Spouses Act (PROSA) and case law to determine who is to get what and at what percentage.

The piece of legislation starts by giving both spouses equal share in the family home under Section 6. This, however, is subject to certain circumstance such as:

1. the family home was inherited by one spouse;
2. (b) that the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation;
3. (c) that the marriage is of short duration.

Therefore, where there is no other contractual arrangement the law will determine how the properties and assets are divided. This is similar to what happens when a family member dies without leaving a will.

Are Prenuptial Agreements Recognized in Jamaica

A few years ago there were questions as to whether the laws of Jamaica recognizes Prenuptial agreements. The short answer to this is yes.

While PROSA doesn’t use the terms “Prenuptial Agreement” (which is an American term”), it does make provisions under Section 10 for Spouses to may make a contractual arrangement as to how their properties and assets should be dealt with in the event of separation, death or divorce.

The prenuptial agreement should, however, follow certain guidelines for it to be considered by the court. It must be made in writing, signed by both parties and witnessed by a JP or an Attorney. Both parties have of course, must receive independent legal advice on the Agreement prior to signing.

One should also bear in mind that the said Section 10 gives the court the authority to review the agreement. This is to determine whether its enforcement would be unjust. It is therefore in the interest of the party whose idea it was to draft the agreement to ensure that it does not come across as grossly unfair and unjust.

Like any other contract, the court would declare it to be void or voidable if it is made under duress. No party to the contract, therefore, must be forced into signing the agreement. For instance, if both parties have invested heavily financial in the wedding and the day before and one party suggested if the other does not sign the prenuptial agreement before the wedding day, the wedding would be.

Another factor to bear in mind is that the parties must get sufficient to look at the document and have their independent attorneys explain the legal consequences of the agreement.

The truth is marriages are not certain and the recognition of a preputial agreement by the court is not certain either, so the two should be carefully considered.

The post Prenuptial Agreement In Jamaica-What you Should Know About Them appeared first on FTCW Law | Property Lawyers In Jamaica.

Going through a divorce can be very stressful, the length of time and cost to get a divorce in Jamaica can further that stress. On average,  divorce in Jamaica starts at $120,000 and can take up to 18 weeks to complete. The competence of your divorce lawyer and the complexity of your case will influence the cost of your divorce and the length of time it will take.

Before Getting Started

Not everyone who is married will qualify for a divorce in Jamaica. It is important therefore to satisfy the following requirements before approaching your divorce lawyer. This can certainly save you a lot of time since most lawyers will charge a consultation fee separate from the cost of conducting the divorce proceedings on your behalf.

Jamaican National or Domiciled in Jamaica

For anyone to get a divorce in Jamaica, at least one of the parties to the marriage would have to be a Jamaican national or domicile in Jamaica.  The court will also consider those who are ordinarily resident in the country for at least a year immediately preceding the divorce application.

Married for at least 2 years and separated for at least one  year

The Matrimonial Causes Act contains the law that governs divorce in Jamaica. According to that Act, you must have been married for at least two years and separated for at least one year before applying for divorce in Jamaica. That one-year separation must be continuous leading up to the date of the application. However, separation is not limited to couples who are living apart.  Section 6 of the Act makes allowance for couples who are living together under the same roof. They will be considered to have been separated if, for instance, they do not operate as man and wife under the same roof.

Irretrievable Breakdown of Marriage 

For a divorce application in Jamaica to be successful, one has to prove that the marriage has broken down irretrievably. This would mean that there is no likelihood you and your spouse will get back together.

Arrangement for Children

When petitioning for divorce in Jamaica, provisions for the relevant children is tantamount. Relevant children in this context mean children under 18 years of both parties or a child under 18 years of one of the Petitioner who was accepted as a child of the family by the other party. In the event of a child who is over 18 years and under 21 pursuing tertiary education, provisions will have to be made for this particular child.  Provisions for the relevant child includes living accommodations, school arrangements, medical needs, and maintenance. If these issues are not agreed upon by both parties at the time of filing the petition it can potentially delay the divorce process.

Documentation

Once all the above requirements are ticked off, you will need the original marriage certificate. If you have lost it, you may apply for another copy at the Registrar General’s Department. The original marriage certificate will be submitted to the Court along with the Application for the Decree Nisi.

Information necessary for Divorce In Jamaica

Divorce in Jamaica starts with an application by way of Petition. The petition is completed by the Petitioners lawyer and filed in court. To draft the Petition, you will need to supply the lawyer with the following information:

1. Your full name
2. Your address
3. Occupation
4. The other party full name, address, and occupation
5. The date of the marriage, place of marriage and marriage officer (which is why the divorce lawyer will require a copy of the marriage certificate (this information can be found on the marriage certificate.
6. Name and date of birth of all the children
7. The reason for the breakdown of the marriage
8. Date of separation
9. Income of petitioner and respondent
10. Health and education for the children

The petition is accompanied by affidavit evidence. The affidavit will basically expound on the details and information contained in the Petition.

The Affidavit and petition are signed by the Petitioner and witnessed by a Justice of the Peace if the Petitioner is in Jamaica and a Notary Public if the Petitioner is overseas. Once completed the petition is sent to the Tax Administration of Jamaica to be stamped. Stamp duty on divorce is $5,000.00. Once stamped the divorce lawyer will file the petition and affidavit.

Service of Divorce Documents on the Respondent 

Within three weeks of filing the petition and affidavit, your divorce lawyer will return to collect the documents. The documents will have the court seal and the registrar signature. The sealed petition along with the affidavit should then be personally served on the respondent. If the respondent is overseas, a process server may serve the said documents on the Respondent. The process server can be an independent third party. One should bear in mind that the process server will be required to sign the Affidavit of service (usually prepared by the lawyer) and his signature should be witnessed by a notary public. The affidavit of service will say how the respondent was served on what day, at what time and where.

Once the documents are served on the Respondent he may respond by filing an Acknowledgement of Service and an Answer. In the event that no Acknowledgement of Service or Answer has been filed the divorce lawyer can go ahead and file the Decree Nisi along with draft order and Affidavit of the Petitioner and Affidavit of search. The court will check these documents and once satisfied, it will grant the Decree Nisi.

Six weeks must elapse between the granting of the decree nisi and an application for a decree absolute. The application for decree absolute contains will require the following documents:

1. The application
2. An affidavit in support
3. An affidavit of search
4. Preparing a draft absolute.

The Petitioner or Respondent may apply for the decree absolute. This is the final step in the divorce proceedings and when the decree absolute is signed by a judge it indicated that the marriage is dissolved. If at any time prior to granting the decree absolute there is reconciliation between the parties then the decree nisi will be rescinded.

We trust that you will find this article helpful if you have any questions please do not hesitate to contact us via telephone or use our free live chat below.

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