Getting a Divorce in Jamaica

You have taken the vows where you have pledged to be take your:

" lawful, wedded wife/husband, to have and to hold from this day forward, for better or worse, for richer or poorer, in sickness and in health, to love and to cherish, until death do you part."...

But here you are after the marriage has commenced, looking for answers on how to terminate the union because it simply isn’t working out. You may have questions on the way forward. Here are some answers regarding Divorce proceedings in Jamaica.

 

Who can get divorced?

•           Jamaican National who is married

•           Person is either domiciled or resides in Jamaica at the date of the commencement of the proceedings

•           Person is Married for  2 years minimum

•           Person is separated for 1 year minimum

 

There are essentially three (3) stages for a divorce

•           Petition for Divorce

•           Decree Nisi

•           Decree Absolute

 

Jamaica has a “No fault” jurisdiction, which means that one does not have to prove that the other party is at fault or has engaged in a particular action thus causing the marriage to come to an end. What the Court is interested in, is that the marriage has “broken down irretrievably”. This means that the relationship is over, done, finished….and there is no chance that the husband or wife will sort out their issues and be united again.

 

It is very important to note that even if one party does not want to get divorced, they cannot hold this over the head of the other party and refuse to get divorced. What is important is proof that the husband/wife was served the divorce papers. This is because a Divorce cannot be a secret. One party cannot get a Divorce and the other party does not know. It is a matter of public record and the marital status of a person has legal implications for both parties.

 

Many persons are anxious and wish to be divorced immediately, however a Divorce takes time, and an Attorney-at-Law cannot tell you exactly how long a Divorce may take, as there are several things that are out of the hands of the hands of an Attorney:

•           The Registry who receives the filed documents may have amendments which need to be corrected before the matter may move forward;

•           There may be issues with finding the other party and serving the documents on them;

•           There may be a wait list- in that other persons seeking a Divorce may have filed before you and you simply have to wait before a Judge signs off on the Divorce and grants the “Decree Absolute”.

 

What is clear however is that the earlier you get the process legally started, means that you are one step ahead in getting the desired outcome of obtaining a Divorce?

 

Is it time to get the process started?

Kymberli Whittaker 

Website: https://whittakerlaw.business.site/posts/6341003551332915384?hl=en-US

Booking info: https://visibook.com/kymberliwhittakerlaw?pp=calintro

Reckless Driving- Stop it Now!

Respect, Discipline and Order. Three words that seem so simple, but if one traverses Jamaica's roads it is evident that the actions associated with these three words are not necessarily the norm or followed by those afforded the privilege of commandeering a motor vehicle.

Who is to blame? The drivers, the passengers? The government? You? Me? It depends on who you talk to, the answer may vary in relation to this question.

Many believe that the flaws or corruption in the system start at the point of issuing of License to operate a motor vehicle, where it is believed that the corruption is so pervasive as "money talks and a motor vehicle license walks....straight into the hands of the person with links or money". Persons who cannot read or write are issued with licenses and are unable to follow instructions and the Rules of the Road.

The category of drivers who draw the most ire of law-abiding citizens are taxi drivers. Nowadays persons are surprised if they see a taxi driver waiting in line, not contributing to congestion or behaving in a law abiding manner. The expected attitude is one which endangers the life of road users and themselves, and yet they are allowed to continue their rampage with reckless abandon. 

When we all heard about the vehicle that hit a Police Officer recently, I am positive that we all imagined the same vehicle- Toyota Wish with stripes on the side, heavily tinted. Certain behaviour has become so normalised in our subconscious that we don't even get upset  anymore at the illegal behaviour. We have become numb, as recklessness has become the norm.

It has always been said that most of the owners of taxis and coaster and Hiace buses alike- public passenger vehicles (PPV) are those who are sworn to "Protect and Serve". Those who have taken an oath to uphold the law seemingly turn a blind eye to their own offending vehicles or those of their "compadres". As a result of this "commendable" effort to not impede external income generation, it has been noted that some PPV vehicles are untouchable and the drivers are free to do as they please.

There has been some new developments however as due to the rise of social media Road users are no longer relegated to passively venting about the common infractions witnessed on the nation's roads without recourse. Road users are fighting back... posting the offending vehicles on Twitter, and Facebook and sharing videos and pictures on Whatsapp until it reaches the attention of the Jamaica Constabulary Force, but the question is what makes the behaviour acceptable to so many offending drivers? 

Is it the lack of fear of repercussions because passengers quietly sit and say nothing because they reach their destination on time?

Is it that the fines under the Traffic Act are not onerous enough to ensure compliance?

Do Ticket amnesties send the wrong message by subtly implying that the behaviour of Offending drivers is ok?

Why do the Offending drivers have to behave so recklessly?

Do harsher penalties have to be put in place to force a drastic shift in attitudes and behaviour?

I welcome discussion on this issue as one thing is clear, the total disregard for Rules and Regulations are not to the benefit of the wider society as our lives are being placed at risk daily. For longer lives filled with less stress, the attitude of our road users needs to change. We need to hold not only other drivers accountable but also ourselves. "Integrity is doing the right thing even when no one is looking". Just imagine if it was normalised to do the right thing while traversing our roads. Jamaica would be a safer place. Let us all move away from reckless behaviour and normalise discipline and order.

 Kymberli Whittaker

Attorney-at-Law

https://whittakerlaw.business.site/

MARITAL RAPE: Selective Ownership of a Woman’s Body

If a man physically abuses a woman, there is outcry. If he lays a hand on her and if she presses charges, he will be dragged before the courts, often with no sympathy for his assault on her- Even if they are married. The threshold is lowered to a point of non-existence for a more intrusive type of assault- Rape.

The message sent is confusing and a firm stance needs to be taken. In cases of rape, personally knowing your attacker does not vitiate the attack, so why then should being married to your attacker preclude an offence from being committed?

The words of the traditional marriage vows are:

"I, ___, take you, ___, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and health, until death do us part."

It did not say:

"I, ___, take you, ___, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse, to own your body, for me to do as I wish, even if you are against it. To hurt you and harm you, because of my sick and twisted mindset ...and there is nothing you can do about it, until death (most likely of the wife) do us part”.

One key element of the offence of Rape is consent. If a wife does not consent, that should be it. The union of marriage has created an impenetrable shield, allowing husbands to perpetuate sexual violence against their spouse with the protection of the law.

There has been a steady increase in domestic violence cases, with many persons, not living to tell the tale. A woman is empowered to stand up against physical domestic violence and is told repeatedly, “a man does not own her…..walk away”, however based on the current stance it would appear as if there are levels of abuse, and physical abuse is placed on a higher tier than the unwanted sexual violation of a wife and/or mother, and she will receive no protection if this is the avenue taken by her spouse.

So many persons are living in marriages where the issues if chronicled would surprise many, but a brave face is put on as they struggle to make it work, or give the appearance of making it work- often because of the standards of the church and/or its members.

An issue also arises where a wife is trying to separate from her husband. A key element needed to successfully file a divorce petition is separation for a year (including sexual contact). What happens when the husband simply won’t leave his wife alone through forced sexual contact? In a Divorce application, the parties may still be viewed as separated even if they continue to cohabit in the same house,  but not if they continue having sex with each other. There are therefore several implications stemming from this issue.

The church has missed the mark in their utterances and their continued unequivocal Stance regarding the submission of a wife to a husband to their own detriment. Otherwise Criminal behavior is being encouraged on a weak basis- the husband does not own the outside of the body, so he can be prosecuted accordingly, but he owns the inside of her body, and should not be prosecuted. Selective ownership has no basis in law and it is time for the playing field to be leveled. 

The Obeah Act, is it time for it to be repealed?

When one hears the word "obeah", one often connotes it with something negative- evil, foreboding, and black magic. However in Jamaica the practice of Obeah is one that is acknowledged as existing somewhat peacefully, and if one simply doesn’t believe in the power of Obeah it is ignored, similar to how other activity deemed illegal by the state is ignored- such as Prostitution on Back Road, paying representatives of government agencies “a ting” to speed up processes, or buying a drivers licence---We know it is practiced in Jamaica, but we choose to ignore the red flags when we drive pass the homes, and the ads in some of our less reputable print media.

According to the Obeah Act, Section 2-

“A person practicing obeah” means any person who, to effect any fraudulent or unlawful            purpose, or for gain, or for the purpose of frightening any person, uses, or pretends to use any         occult means, or pretends to possess any supernatural power or knowledge;

This definition alone presupposes that a person cannot possess any supernatural power or knowledge.

Jamaica is not a Theocracy,  and the manner in which the definitions and offences are couched gives the impression that an offence is not being committed  against man,  but against a supreme being- and only a Supreme Being would have certain powers.

Persons who believe in the power of Obeah treat it similar to a religion where there is a person who can be compared to a Pastor in the Christian faith who has a connection with a higher entity, and is able to intercede on their behalf.

Obeah men or women claim to be able to cure persons of different maladies, use concoctions to bring, wealth, happiness, success and prosperity to individuals, on the positive side, while they claim to be able to rain down fire and brimstone as punishment of the heads of unwitting individuals who have allegedly wronged their fellow man.

Belief kills and Belief cures, so why should one belief be given precedence over another due to Christianity being an established religion with centuries under its belt, vs Obeah which is relatively recent in comparison is good enough of a reason? Is it that one belief is so steeped in Afrocentric traditions, stemming from our history of slavery, and as such it is deemed inferior to Eurocentric religions and their traditions?

What is interesting is certain denominations in Christianity  engage in practices such as anointing with olive oil and other concoctions- healing water, different rituals, use of flowers and other things which are said to have powers.  Grape fruit and cream soda is said to work wonders for some of those practicing  the Christian faith. 

A person practicing obeah” means any person who, to effect any fraudulent or unlawful purpose, or for gain, or for the purpose of frightening any person

How can you prove intent????? How does a Judge determine a fraudulent purpose? I guess working a spell to aid in the commission of an offence once admitted , is straight forward. A person practicing Obeah for gain, can be akin to some Pastors asking for offering during their services and churches being registered as Private businesses. Not everyone ascribes to the Christian belief but does that make what Christians believe less real to them? I think the same leverage should be afforded to those who have alternate beliefs.

There are provisions in Jamaica's Charter of Fundamental Rights 2011 which guarantee religious freedom which includes the right to freedom of expression, thought, conscience and belief, and also the freedom to peaceful assembly and association.
The rights are designed to protect persons whether we agree with them or not, and as such I call for the repeal of the Obeah Act in 2017.

PAPER TRIALS for Murder: The Impact on Justice

In criminal trials, witnesses normally provide evidence by going into the witness box and testifying. However since 2015, the amendment of the Evidence Act to include Section 31 makes provision for the statements of witnesses to be admitted in evidence even when the witness cannot be found or is unavailable.

Subject to Section 31G of the Evidence Act:

A statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible, if it is proved to the satisfaction of the court that such person —

(a) is dead;

(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;

(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;

(d) cannot be found after all reasonable steps have been taken to find him; or

(e) is kept away from the proceedings by threats of bodily harm, and no reasonable steps can be taken to protect the person.

The effect of this is that statements given to police during investigations of a crime, are now allowed to be read into evidence as the Witnesses “Examination-in-Chief”, in a trial once the conditions have been satisfied. This however means that the Defence does not have the opportunity to cross-examine the relevant witnesses which was previously the norm.

The right to cross-examine persons who have made statements against your innocence is an important and fundamental part of our criminal justice system. It is true that there are several cases which have stalled indefinitely due to an unavailability of witnesses who initially gave statements, however it is my opinion that in ensuring a fair trial, paper trials are subtly trampling on the rights of the accused to confront their accuser in a fulsome manner.

Section 15 (6)(d) of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 states:

(6) Every person charged with a criminal offence shall­: 

(d) be entitled to examine or have examined, at his trial, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The scope of Cross-Eamination covers topics asked in E
xamination-in-Chief and also questions on witness credibility. Witness credibility questions essentially questions the case put forward by the crown or witness and questions whether the witness is telling the truth. Questions on integrity, bias and capability are allowed.

The Defence is allowed to suggest their case during Cross-Examination and put their scenario of what happened to the witness. The Defence case must be put to the relevant witnesses and failure to cross-examine leaves the evidence of the relevant witness unattacked.

“The objects sought to be achieved by cross-examination are to impeach the  accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examining party.”

Paper Trials place the Defence in a precarious position in ensuring that their case is effectively put, as Cross Examination is limited. This thus forces the hand of the Accused who in a trial has three options- they can choose to remain silent, make an unsworn statement from the dock or they can choose to testify from the witness box.

Many feel compelled to enter the witness box opening themselves up to cross examination when they were not able to cross examine the Prosecution witnesses. The demeanor of the Accused is open for observation to the jury and the scales are automatically tipped in favour of the prosecution.

Paper trials are completed quickly, however coupled with the 7 member jury which is in place for non-capital murder offences, the odds are swayed in favour of the prosecution in getting convictions. Especially in cases with many years of delay, the Defence also faces severe hardships in locating witnesses who can assit their case, as persons migrate or lose interest. So the longer that the case takes to be tried, the weaker the Defence case becomes.

The backlog which exists now will be reduced significantly by Paper Trials-but to what effect? Justice in a court of law in a murder case occurs when the relevant and admissible evidence or facts are considered by a jury and they come to a conclusion based on the evidence presented. In a case where the punishment is life imprisonment, I submit that the standard should be higher and not lower in relation to the type of evidence that is made available to the jury for the determination of  guilt or innocence. If the relevant evidence is not put before the jury then how then can we truly say that Justice has been served?

You find yourself arrested- Now What are your Rights?

Worst case scenario you find yourself arrested, there are a few key things that you keep in mind. Regardless of your social station they are certain rights that you have as your liberty or freedom is taken from you. Ghetto youth or not- The rights remain the same across the board.

In order to effect an arrest on anyone under the Constitution of Jamaica the police should have  a warrant, which would indicate that the person is wanted for a crime, or the police may have reasonable and probable cause that the person has committed an offence and even without the warrant can effect an arrest.

The Charter of Fundamental Rights and Freedoms(Constitutional Amendment) Act, 2010, which significantly changed Chapter III of the Constitution, confers rights that many persons do not know about so when the rights are violated it is accepted through ignorance and many stay in jail for longer periods than absolutely necessary.

Any person who is arrested or detained shall have the right­:

(a) "to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;"

The word “and” is instructive, as relatives don’t know that they have a right to visit their incarcerated loved one in order to ascertain their status. Information may be difficult to get from police stations, but this should not be. This is a right- detainees should not be begging for calls in order to communicate with loved ones.

(b) "at the time of his arrest or detention or as soon as is reasonably practicable, to be informed, in a language which he understands, of the reasons for his arrest or detention;"

The reason for being locked up, shouldn’t be a guessing game for the detainee, some as repeatedly what the reason is and can’t receive an answer. Once detained police may have reasonable suspicion in order to hold a person behind bars, however some persons are kept behind jail for weeks- months and the reason for detention changes like the wind before they are either charged or released.

(c) "where he is charged with an offence, to be informed forthwith, in a language which he understands, of the nature of the charge;"

English is our first language however patois is the main tongue for many. In describing the nature of the charge, officers should ensure the person understands, breaking it down where necessary. It is the person’s right. Literacy is so tricky in Jamaica. So many persons are functionally illiterate. They can spell their name and address or they really are not familiar with many “normal” or "everyday" words and have difficulty grasping the English Language.

(d) "to communicate with and retain an Attorney-at-law."

If you can’t afford a lawyer, Duty Counsel or a Legal Aid Lawyer should be appointed to you.  Where a Question and Answer session is conducted by the police or the giving a Caution Statement is to be done( where detained person gives a comprehensive statement of incident to police) INSIST THAT A LAWYER IS PRESENT. Police Officers will use 2 JP’s as permitted, however with no legal advice, this is a road that many regret walking when they eventually retain counsel. What a Lawyer may object to, may slide through in an interview without one.

The Constitution provides that a person should not be arrested without charge for  more than 24 hours, but the standard practice is 72 hours. ( It is said with so much authority that there must be precedent that I am not aware of which must trump the constitution-smh)

The waters become even more muddy where police say a detained person is scheduled to go an ID parade- weeks to months without charge is possible, as if an application for Habeus Corpus (order to release the detained person who has not been charged within a reasonable time) is made to the RM Court in lieu of the ID parade to get release- The attorney may be told that the parade should be conducted first. Attorneys instead of going to the RM Court may go to the Supreme Court in order to get the person released if not charged. So persons without Attorneys sometimes fall through the cracks and are incarcerated without charge way longer than they should be.

Chapter III of the Constitution states that someone detained and charged should be taken before the court without delay. It is also stipulated that the suspect shall be released if not tried within a reasonable time.

Please note that the Charter of Rights also state that you are entitled to

·        the right to equality before the law;

·        the right to equitable and humane treatment by any public authority in the exercise of any function;  (No box down from police is acceptable- The Charter speaks further to the right to protection from torture, or inhuman or degrading punishment )

·        the right to freedom from discrimination on the ground

o    being male or female;

o   race

o   place of origin- Tivoli vs. Beverley Hills. There should be no difference in treatment.

o   social class,

o   colour,

o    religion

o   political opinions- JLP or PNP it shouldn’t matter or even NDM

I would love to include sexual orientation as those charged with offences such as buggery, sometimes face  a warm time- as enough care may not be taken to ensure that the charge is not made accessible to other detainees.

Earlier I indicated police must have reasonable grounds to take a person into custody. Under the Charter please note:

No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances-­

(a) in consequence of his unfitness to plead to a criminal charge;

(b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted;

(c) in execution of an order of the Supreme Court or of the Court of Appeal or such other court as may be prescribed by Parliament on the grounds of his contempt of any such court or of another court or tribunal; The Charter of Fundamental Rights and [No.] 9 freedoms (Constitutional Amendment) Act. 20 II

(d) in execution of the order of a court made in order to secure the fulfillment of any obligation imposed on him by law;

(e) for the purpose of bringing him before a court in execution of the order of a court;

 (f) the arrest or detention of a person­

(i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or

(ii) where it is reasonably necessary to prevent his committing an offence;

(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his care and protection;

 (h) the detention of a person­

(i) for the prevention of the spreading of an infectious or contagious disease constituting a serious threat to public health; or

 (ii) suffering from mental disorder or addicted to drugs or alcohol where necessary for his care or treatment or for the prevention of harm to himself or others; or

(i) the arrest or detention of a person­

(i) who is not a citizen of Jamaica, to prevent his unauthorized entry into Jamaica; or

(ii) against whom action is being taken with a view to deportation or extradition or other lawful removal

KNOW YOUR RIGHTS!!

Understanding Self Defence from a Legal Standpoint

Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property

Right to defend yourself

Section 23 of The Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others.

It is instructive to note, however, that the protection of life or property has to be lawful. The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonable or not).

It is important to note:

                      a) A person who is being attacked should not be expected to 
                   "weigh to a nicety the exact measure of his necessary 
                    defensive action".

b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.

Excessive force

The issue of a mistake as to the amount of force necessary was considered by the courts  and the law is:"They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable."

No duty to retreat

There is no rule of law that a person attacked is bound to run away if he can. A demonstration by the defendant that at the time he did not want to fight is no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances act without temporising, disengaging or withdrawing; and he should have a good defence

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away.

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Mistake as to Self- Defence

It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person, it would appear that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.

If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

The reality of self -defence in a murder charge

1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.

2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.

2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.

3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.

June 3, 2016