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

Are you guilty of Rape?

In Jamaica, Rape is when a male has sexual intercourse with a female without her consent with the intention to have sex with her without her consent or with indifference or recklessness, meaning, not caring whether or not she consents …” There are thus three essential elements under Section 3 (1) of the Sexual Offences Act  (SOA) for a person to be convicted of rape

1) Sexual intercourse must take place (This definition of rape does not include anal or oral penetration or penetration with an object other than a penis)

2) No consent- The female does not agree to engage in that activity

3) The Man is indifferent or does not care to ensure that the female consents ( A man cannot be “raped’ either by a man or woman under Jamaican Law)

Rape is a crime of basic intent, and based on the elements of the offence, one has to look at the accused man’s subjective intention, to see whether at the time of the incident, he HONESTLY and GENUINELY believed that the woman was consenting to the act. This is a very important point, because even though a woman may say she did not give her consent the court will look at the circumstances which led up to the act.

Coitus would also be classified as rape, where a woman believed that she was having sex with a particular person but through  pretense, or fraudulent concealment of identity, another man is the one who benefits from this mistaken consent.

It would be clear then that if held up at gun point, or if a female was threatened that there would be no consent. Obvious resistance and objections by the female are indicators as well, which can be used to show that a reasonable man could not have believed that  the female wanted coitus to occur.

The line becomes blurry when  persons are in a relationship compared with a stranger-encounter type situation, where the “He-said vs She-Said” scenario arises with little or no evidence to prove that a rape did or did not occur. There is an offence of Marital Rape detailed in Section 5 of the SOA, however it is best for males to take extreme care when engaging in sexual activity, even with their wives.

The Penalty if found guilty, is a maximum sentence of life imprisonment with a minimum term of 15 years.  There are however mitigating factors which may reduce the years of a conviction. Some considerations are the age of the offender, his general circumstances, his previous good character, his mental state at the time of the offence, the actual circumstances of the offence and a plea of guilty.

Being charged with rape can have debilitating impact on a person’s life as even if found innocent, there is often a stigma attached. Word to the wise: Think and ensure that there is consent before engaging in sexual activity or else you may be guilty of rape.

Kymberli Whittaker | BA, LLB (Hons)

Attorney-at-Law

Kingston | Jamaica

( Tel: +1(876)378-6774

* Email: kwhittaker@whitewhittaker.com

8 Website: www.whitewhittaker.com

Sex Offenders: Do you really know your "neighbour"?

 by: Kymberli Whittaker

Do you know how many sexual offenders, rapists or child molesters live in your neighbourhood? Contrary to the belief of some persons, many sexual offenders and predators don’t live only behind zinc fences and in garrison communities, they also live behind pretty walls, automatic gates and well trimmed hedges.  They could be your friendly neighbor, extra-lesson teacher for your kids, Grocer and even your co-worker and unbeknownst to you they lurk, plan and plot to commit sexually motivated crimes on a day to day basis.

Unfortunately we cannot go into a person’s mind and know the perverted thoughts they harbour and prevent them, but as a nation we should have the power to reduce the amount of dastardly acts by being informed and acting accordingly to protect ourselves and our family from persons who look so innocent but have a convicted criminal record for committing a sexual offence, especially against children.

There has been much debate and discussion over the years about the creation of a Sex Offenders’ Registry to track local offenders. The Sex Offenders' Registry was established as a part of the Sexual Offences Act which was passed into law in October 2009.  However, the regulations for the Registry were tabled in November 2012 but were not put to use because of the absence of a database.  In May 2014, we were told by the Minister of Justice, Mr. Peter Bunting  that the data system to facilitate the Registry was complete and work was to begin to get the stakeholders up to date.

This is awesome news that we are actually making headway after almost 5 years of waiting, however I am concerned about its effectiveness once implemented as this is a collaborative effort between several Government agencies. Our courts need to have efficient reporting procedures and as an entity steeped in the paper or hard copy mentality, they will have their work cut out for them especially as it relates to sending the necessary information for the previous convicts. For this Registry is to work, we need to establish a proper system of entering information on the offender within a timely basis in order to facilitate efficient dissemination.

I anticipate that with this Registry we will be able to see the communities where most offenders live and try to stage an intervention and  if possible to attack the root cause of the problem and prevent others  from walking down that road of perpetuating sexual abuse towards others.

Hopefully the fear of having their name, address, alias, photograph, date of birth and places frequented placed on a list will detract many from committing these type of crimes, and for those who have have already offended, the fear will keep them in line. Sexually motivated crimes are high on the list on crimes where re-offending takes place and this has been ignored for many years, as we falsely hope that the persons released just change their ways and choose not to re-offend. and this is ludicrous. There is no evidence that they receive counseling while incarcerated or special help to understand the issue and prevent it from taking place which helps to contribute to the cycle. 

Now as we know the group JFJ is the Champion for the protection of the rights of different categories of criminals, and they have posited that  “people have served their time and done their punishment”, yet we would be “stigmatizing them and leaving them vulnerable” if their information is made available to the Public.  However on speaking on behalf of my law abiding citizens, I say that  for too long our rights have been ignored, abrogated and treated with disdain. We deserve the right to at least to know how  many sex offenders live where we live; live where we send our children to school,  as  some of our kids have to walk to school daily.  So far we have been taking risks without knowing the odds, and we should be able to take calculated risks and not leave things like safety up to chance.

If the Government is afraid of crimes being perpetrated against convicted persons who have served their time and now roam the streets, this is indeed a valid concern, as Jamaicans really have little tolerance of persons even just accused of rape (although it would seem that persons of the higher echelon are able to get rid of this stain and be accepted with open arms by many upstanding citizens), however knowledge is power and I believe this knowledge can empower us. Names can be withheld from the general public  but be of use to other agencies where this information relating to character is crucial. Also persons who are sex offenders should be prevented from entering certain occupations where they may be placed in a compromising position based on their history and predilections .

This Registry is important  and once implemented will play a  critical part in  Jamaica's development. I am no longer patiently waiting, but I am anxious to see what our Government is coming with, and what terms and conditions will be attached to the implementation. I want to "know" my neighbour. Do you?