FAMILY

LAW

COMMITTEE

REPORT

NO. 1

CONTENTS Paragraphs

Members of the Family Law Committee Terms of 1 P

2 - 4

Dissolution of marriage -5 7 25

Historical background 5 - 5.2

Grounds 6 - 25

Restrictions on divorce and nullity 26 - 28.1

Petitions during early years of marriage 26 - 26.4

Hardship to the respondent 27 - 27.3

Decrees affeCting children ... 28 - 28.1

Counselling services 29 - 29.3

Bars to divorce ... -30 - 32.7

lesumption of death and dissolution of marriage 33 - 312

y\ Void and voidable marriages 34 - 34.18

Other matrimonial remedies 35 = 39.11

Remedies considered 35

Restitution of conjugal rights 36

Jactitation of marriage 37 - 37.2

Petitions for damages for adultery 38 - 38.3

Judicial separation 39 - 39.11

Jurisdiction of, the Court in matrimonial causes .40 - 54

Existing bases of jurisdiction in matrimonial causes 40 Basic principles re domicile 41 - 41.4

Existing jurisdictional grounds for divorCe 42 - 42.1

Existing jurisdictional grounds for nullity r 43

Existing jurisdictional grounds for presumption of death and dissolution of marriage ... 44

Existing jurisdictional grounds for wilful neglect to maintain 45 - 45.1 General consideration of jurisdictional grounds for divorce ... 46

Specific jurisdictional grounds for divorce 47 - 49

Domicile ... 47 - 47.1

CONTENTS, contd. CONTENTS, contd.

Paragraphs

76 78 - 79.3 80 81

Residence ... Nationality ...

cp Jurisdictional grounds for nullity suits Jurisdictional grounds for presumption of death and dissolution

of marriage Jurisdictional grounds for orders arising out of the matrimonial

relationship Jurisdictional grounds for wilful neglect to maintain Recommendations as to jurisdictional grounds in matrimonial

causes Wife's dependent domicile Married minor's domicile Recognition, of foreign decrees ...

Existing bases of recognition of foreign divorce decrees Existing bases of recognition of foreign nullity decrees Existing bases of recognition of foreign decrees of presumption

of death and dissolution of marriage General considerations as to recognition Domicile as a basis for recognition Residence as a basis for recognition Nationality as a basis for recognition Rule in Travers v. Holley ... Real and substantial connection Place of celebration of the marriage Non-judicial divorces and annulments Recommendations

Refusal to recognise foreign decrees Common law position Substantial injustice Contrary to natural justice ... Fraud Duress

Public policy ... Hague Convention and Commonwealth statutes .

Conclusions Recommendations

Appendices I. Organisations whose views were sought

II. Table showing number of petitions filed in 1973

III. Section 114 of the Family Law Act (Australia)

IV. Table of References

V. Summary of recommendations

iii

Paragraphs

48 - 48.4 49 50 - 50.5

51

52 53

54 55 - 55.6 56 - 56.2 57 - 70 57 - 57.1 58 - 58.1

59 60 61 - 61.9 62 - 62.9 63 - 63.2 64 65 66 67 - 67.6 68 - 70 71 - 81 71 72 - 72.1 73 - 73.1 74 75

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FAMILY LAW COMMITTEE

REPORT NO. 1

To: THE HONOURABLE R. CARL RATTRAY, Q.C. Minister of Justice

MEMBERS OF THE FAMILY LAW COMMITTEE

The Hon. Mr. Justice Ira Rowe

The Hon. Mr. Justice Boyd Carey

*Her Hon. Mrs. Myrtle Mason

Mrs. Inez Stephens

Mr. Douglas Brandon

Mr. R. N. A. Henriques

*Mrs. Shirley I. Miller, Q.C., C.D.

Mrs. Rosemary Neale-Irving

— Chairman—Judge of the Court of Appeal

— Judge of the Supreme Court

— Judge of the Kingston and St. Andrew Family Court

Social Worker

— Attorney-at-Law

Attorney-at-Law

— Director of Legal Reform

- Secretary

*I-ler Honour Mrs. Myrtle Mason replaced Mrs. Gloria Cu.mper as Committee Member as from Maroh, 1978, and Mrs. Shirley Miller replaced Dr. Winston McCalla as from 1st June, 1977.

Terms of Reference

1. The Committee was appointed in October, 1975 and specifically charged "to examine the existing Laws relating to Divorce and other areas of Matrimonial and Family Law, and to make recommendations for ohanges where this is deemed necessary."

Preliminary

2. The establishment of the Family Court which started . operation in December, 1975 was a first step towards a new approach to the whole subject of Family Law. The intention was to create a specialised Court to deal effectively with all Family Law matters. It has been recognised that it is necessary to restructure not only the system of administration of Laws which affect the family relationship; but also the laws them-selves. To this end, pending the transfer of matters at present within the purview of the Supreme Court's jurisdiction to the Family Court, a review of the laws relating to these matters was undertaken.

3. We identified as the broad areas for consideration : — (i) Grounds for the dissolution of marriage; (ii) Grounds for nullity; (iii) Other matrimonial remedies; (iv) Jurisdiction of our Courts and recognition of foreign decrees;

(v) Custody of children; (vi) Distribution of property consequent upon termination of marriage.

4. Because this area of law relates to one of the fundamental institutions of our society, that is, the family, we consider the opinion of the community at large on these issues relevant to any proposed change in the law. Hence, when this Committee was established its existence was advertised and the view and comments of the public were sought as to the topics mentioned in paragraph 3 above. Later our tentative views were set out in an Interim Report which was published in September, 1977. Those tentative. proposals were widely publicised in the press and on radio and television—and public views and comments were again requested. In particular we invited the views and propo-sals of the organisations listed at Appendix I to this Report. That Appendix also indi-cates those of the organisations from which we received some response to our invitation.

This report deals with the matters listed at (i)—(iv) of paragraph 3 above. The mat-ters at (v) and (vi) will be the subject of separate reports.

DISSOLUTION OF MARRIAGE

Historical Background

5. In the First Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in Jamaica dated 29th June, 1927 there is the following ques-tion and answer : Q. Is there any and what jurisdiction in this Colony competent to pro-

nounce a sentence of Divorce, either a vinculo matrimonii, or a mensa et thoro, between parties married in this Colony, or elsewhere? and if not, has any inconvenience been found to result from such want of jurisdiction?

A. There is no such jurisdiction, and inconvenience must, I make no doubt, result from the want of it.

In England, at the time of that report, the Ecclesiastical Courts had exclusive matri-monial jurisdiction and granted decrees of divorce a mensa et thoro which corresponded to what are now called decrees of judicial separation. The Ecclesiastical Courts, how-ever, had no power to grant a decree of divorce, that is, a decree dissolving an existing valid marriage. It will be appreciated therefore that in Jamaica as in England at the date of the Report mentioned above a valid marriage could only be dissolved by Act of Parliament.

5.1. In 1879 the Divorce Law was enacted in Jamaica. It was based on the English Matrimonial Causes Act of 1857. Under that Law the Supreme Court was given jurisdiction in Divorce and Matrimonial Causes. A husband was enabled to petition that Court for dissolution of his marriage on the ground that his wife had been guilty of adultery, while the grounds for dissolution made available to a wife were that the husband had been guilty of :

(a) incestuous adultery; (b) bigamy with adultery; (c) rape (d) sodomy; (e) bestiality; (f) adultery coupled with cruelty; or (g) adultery coupled with desertion without

reasonable excuse for two years or upwards.

In other words the husband could petition for divorce on the ground of adultery and the wife on some form of aggravated adultery. By an amendment the law made in 1926 however, the wife also became entitled to petition for divorce on the ground of

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adultery without more, that is, adultery without the elements of aggravation which had previously been necessary. The wife also retained the right however to petition for divorce on the grounds of rape, sodomy or bestiality.

5.2. In 1938 three new grounds for divorce were made available to both husband and wife :

(a) desertion for three years immediately preceding the presentation of the petition;

(b) .cruelty; (c) incurable unsoundness of mind for at least five years immediately

--.1areceding the presentation--orthe petition.

Thirty-one years later,__ legislation, enacted to implement recommendations made by the Law Reform Committee, added the further ground for divorce, available to both husband and wife, of five years separation immediately preceding the presenta-tion of the petition. For this purpose the separation is required to be continuous save that no account is to be taken of any one period, not exceeding three months, of resump-tion of cohabitation with a view to reconciliation. The Divorce Act also provides that where a petition is presented on this ground and the respondent opposes the pronounce-ment of a decree the Court must dismiss the petition unless it is satisfied on the evi-dence that the separation was wholly or substantially/due to the wrongful act or conduct of the respondent.

Grounds

6. The existing grounds for dissolution of marriage available to both husband and wife are :—

(a) adultery; (b) desertion without cause for three years;

(c) cruelty; (d) insanity; (e) continuous separation for five years.

In addition a wife may present a divorce petition on the ground that her husband has since the celebration of the marriage been guilty of rape, sodomy or bestiality.

7. It can be seen then that until 1969 the concept underlying the grant of a decree of dissolution was that of the matrimonial offence. It is necessary iiithe -&s-ecrifie grounds available only to a wife and the grounds listed at (a)—(c) of paragraph 6 to prove that the respondent has been guilty of a specific fault, that is rape, sodomy, besti-ality, adultery, cruelty or desertion and in the case of the ground listed at (d), something which unfortunately has come to be associated with fault, that is, insanity With the Divorce (Amendment) Act, 1969 the first step was taken away from the "matrimonial offence" concept and towards the no-fault concept when the new ground of continuous separation for five years was introduced. Even here, however, the door was left open

-

for the reintroduction of the fault concept in that where the petition is opposed the peti-tioner must prove that the separation was wholly or substantially due to the wrongful act or conduct of the respondent.

7.1. Experience in the Courts has shown that very many people cognizant of the stigma which attaches to one's self, or to one's partner, or to one's family when a peti-tion for dissolution is presented on one of the fault grounds, especially cruelty or adultery, refrain from initiating divorce proceedings until they can rely on the grounds

3

•

which have the elements of effluxion of time. Wilful desertion, once the popular ground on which a majority of petitions were based, is fast giving way to the colourless ground of separation for five years, colourless, that is, if the petition is unopposed.

8. In order to get a general picture of the existing pattern of divorce we compared the number of .petitions filed in the years 1970 to 1974. The figures are as follows :

Petitions for Dissolution of Marriage filed for 1970— 802 Petitions for Dissolution of Marriage filed for 1971— 892 Petitions for Dissolution of Marriage filed for 1972-1311 Petitions for Dissolution of Marriage filed for 1973-1067 Petitions for Dissolution of Marriage filed for 1974-1063

9. The year 1973 was selected as a model and statistics set out in Appendix II show the number of petitions filed, the number granted, the grounds on which they were based, the age of the parties of marriage and at dissolution, and the number of applications for custody and maintenance.

10. The following observations were made : 72.5 %of all petitions for divorce in 1973 were filed on the grounds of desertion and five years separation;

(ii) The majority of petitions were filed in cases where the parties had been married for five to ten years;

(iii) Only three applications were presented for leave to file petition for dissolution of marriage within three years of marriage;

(iv) Marriage occurred in the majority of cases between ages twenty-one to thirty.

11. The members of the Committee who are practising Attorneys-at-Law confirmed that these observations were a fair representation of the pattern from their experience. It is to be noted that the majority of the petitions filed in the year studied were not based on fault in the strict sense of the word.

12. We recognise that persons seeking the assistance of the Divorce Court so order their affairs that the contested divorce in Jamaica is a rarity. It is an expensive proce-dure, may encounter numerous delays, is subject to a multiplicity of interlocutory pro-. ceedings, has special rules as to costs as between husband and wife, and may terminate with both spouses still very much married.

13. The class of persons most vulnerable in any divorce situation is that which con-sists of the children of the unhappy marriage" Dissolution of marriage does not put an end to the mother-father relationship, and we believe that children who suffer the burdens of broken homes should not be put to the additional trauma which charge and counter-charge of one parent against another must bring.

14. Our Courts have gone a long way to develop the law as it relates to cruelty so that today not only physical acts may amount to cruelty.), Still, however, couples who are truly incompatible have to bring the offending conduct within a named category of matrimonial offence before he or she can obtain relief. Knowledge of human relation-ships has developed to such an extent that, in principle, it is high time to remove an enumeration of faults which, as a general rule, is now necessary to ground a petition for dissolution.

A

15. We are of the view that the concept of 'matrimonial wrong' or 'fault' ought not to he the basis for divorce. Factors such as cruelty or adultery on the part of one party are only the indicia of the breakdown of the marriage. In most cases both parties bear some degree of blame for this breakdown. The need to establish that the respondent is at fault has led to widespread collusion and fabrication of evidence in divorce pro-ceedings. The indignity, bitterness and hostlity and un-edifying publicity which usually attend such proceedings are in general harmful to parties and children alike, and in par-ticular inhibit the amicable settlement of financial and other arrangements such as cus-today and visiting rights in respect of the children of the marriage.

16. We believe that in deciding whether a marriage should be dissolved, the sole considerationss-Widd be whether that marriage has broken down irretrievably, that is, there is no real likelihood of reconciliation.

17. We accordingly recommend that the existing grounds for divorce be abolished and one ground viz : the irretrievable breakdown of the marriage be substituted.

18. We considered also what factors ought to be regarded as evidence that a mar-riage has broken down irretrievably. In this regard we considered the law in the Uni-ted Kingdom, Australia and Bermuda and proposals made in the Matrimonial Causes Bill of Fiji.

19. The United Kingdom Matrimonial Causes Act, 1973 and the Family Law Act of Australia, 1975, the Matrimonial Causes Act of Bermuda, 1974 and the Matrimonial Causes Bill, 1977 of Fiji all provide for dissolution of marriage on the single ground we have recommended, that is, the irretrievable breakdown of the marriage. Under the U.K. Act, this is evidenced by the following facts :

,r(i) adultery and that the petitioner finds it intolerable to live with the respondent;

(ii) desertion for two years; (iii) the respondent has behaved in such a way that the petitioner cannot

V reasonably be expected to live with the respondent; (iv) continuous separation for two years plus the respondent's consent;

(v) continuous separation for five years.

The evidence required for irretrievable breakdown of marriage under the Bermudan Act is virtually the same as that required under the U.K. Act save that in the former references to . "desertion" replace the references in the latter to "separation". • 20. Under the Australian Act and the Fijian Bill the irretrievable breakdown of the marriage is provable by twelve months separation in one continuous period or an ag-gregated period with one resumpti6n of cohabitation not exceeding three months within it.

21. It can be seen that the "fault" theory is still somewhat in evidence under the U.K. and Bermudian Legislation and the reported cases confirm this view. The Aus-tralian Act and the Fijian Bill on the other hand, have moved completely away from the concept of fault. A statutory waiting period of one year is imposed in which the parties may make a genuine attempt at reconciliation. In deciding whether a decree of dissolution ought to be granted, the Court has to be. satisfied only that':

(i) there has been the necessary separation, and (ii) it is unlikely that cohabitation will be resumed.

5

(i)

V

22. There is an overwhelming likelihood that difficulties, strains and stresses will i arise in any marriage. Spouses will react variously to these frustrations of their earlier .

hopes and intentions, and will with imagination, tolerance and ingenuity endeavour to preserve their marriage. A time might come when one or both of the parties after agon-ising thought and after giving full weight to all that is involved in taking the positive step of breaking up the unit of home, nevertheless separates himself or herself with or without the children, if any, from the matrimonial home.

23. Legitimate pressures from friends, relatives, professional advisors and counsel-lors, however, may then take place to re-cement the union. Either party may repent and resolve to mend his or her ways. The interests of the children might be given higher priority. All this might lead to a genuine reconciliation. Where there is a sta-tutory waiting period from the date of separation there will be no room for one spouse to act in haste under the whip and spur of a great wrong freshly committed or freshly discovered. There will be time for mature and advised reflection. We take the view therefore, that if all endeavours fail, and at the end of one year the parties are still se-parated and intend to go their separate ways, that would be abundant and satisfactory evidence that the marriage has irretrievably broken down.

24. We therefore, prefer the Australian model and recommend that the Court be empowered to grant a decree of dissolution of marriage where there has been an irre-trievable breakdown of the marriage evidenced by the fact that the parties have been separated for not less than twelve months immediately preceding the date of the pre-sentation of the petition for dissolution of marriage and there is no likelihood of resump-tion of cohabitation. The twelve months period of separation should be a continuous period or two aggravated periods broken by one period of resumption of cohabitation not exceeding three months.

What Constitutes Separation

continued for the specified period. It is not intended that our proposals should lead to suoh absurd or unjust results.

would mean that the mere absence of a spouse on business, for health reasons or for the welfare of the family could constitute grounds for divorce provided that absence

ration" we mean something more than mere physical separation. If this were not so it 24.1. It is most important, however, to appreciate that when we speak here of "sepa-

24.2. What more, then, is required, to constitute "separation" for these purposes? This question can be answered by reference to the decision of the English Court of Appeal in the case of Santos v. Santos 1

24.3. In that case the Court had to decide whether it was satisfied that the . parties to the marriage had lived apart for a continuous period of at least five years immediately preceding the presentation of the petition so that it could, on that basis, 'hold that the marriage had irretrievably broken down. Having found that the `stream of authority ran uniformly and clearly in favour of mere physical separation not constituting "living apart", the Court went on to consider :

(a) what additional element was required; (b) whether that element could depend on a unilateral decision or atti-

tude of mind; if so (c) must the existence of that element be communicated to the other

spouse; and (d) in any event, how could that element be identified so that it would,

in practice, be capable of judicial determination

6

24.4. As regards the approach to be adopted when considering the existence or non-existence of the additional element necessary to constitute 'living apart' the Court found very persuasive the following approach approved by the Australian High Court in

Main v. Main : 2

"In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that suoh a relationship does not end so long as both spouses bona fide recognise it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse,

the dwelling under the same roof, society and protection, support, recognition in public and in private correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thorn, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does not exist. The weight of each of these elements varies with the health, position in life, and all the other circum-stances of the parties."

24.5. The Court, therefore, concluded that in the vast generality of cases, in order to establish a state of affairs of 'living apart', it is necessary to prove something more than that the husband and wife are physically separated and that for the purposes of that vast generality it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting. Hence the necessary additional element "must ... involve at least a recognition that the marriage is in truth at an end—and has become a shell, to adopt a much-used metaphor".

24.6. As to the question at paragraph 24.3 (b) the Court held that the element re-quired in addition to physical separation is one which is capable of being brought into existence unilaterally in that it depends on the attitude of mind of one of the parties to the marriage. As the Court explained, if that element necessarily involved mutual con-sent it would not afford relief where it was most plainly intended to be available—where one party adheres to the marriage refusing to recognise that it has been ended, often despite the fact that the other party has been living with someone else for very many years.

24.7. The question at paragraph 24.3 (c) was answered by ,the Court in the negative. In so doing the Court balanced, on the one hand, the unattractiveness in the idea that, in effect, time could begin to run against a spouse without his or her knowledge and that in this ignorance a spouse might fail to take some step which they would later feel could possibly have saved the marriage, and on the other, the fact that communication might well be impossible in certain cases. A decisive factor appears however to have been that a requirement of communication would tend to equate the 'living apart' grounds with desertion—something which it was unlikely that the legislature had in- tended.

24.8. As regards the Court's approaoh to the question at (d) we quote the headnote to the report of the case :

"The degree of proof required to establish the moment when the condition of living apart commenced, following a period of physical separation, will depend on all the4 circumstances of each case. In some cases there will be evidence, such as la letter, a reduction or cessation of visits to a spouse' in prison, or cohabitation with a third party. Where however, there is only

7

the oral evidence of the petitioner on the point, special caution may need to be taken. In some cases, where it appears that a petitioning spouse's con-duct is consistent with a continuing recognition of the subsistence of the marriage, automatic acceptance of the petitioner's uncorroborated evidence inconsistent with such conduct would not be desirable. On the other hand there may be cases where a moment arrives as from which resumption of any form of married life becomes so plainly impossible that only slight evi-dence is needed, for the nature of the breakdown is so patent".

24.9. With reference to paragraph 24.3 (d) above it is useful also to direct attention to the decision in Pavey v Pavey 3 on section 48(1) of the Australian Family Law Act which, as indicated earlier provides for a single ground of divorce : "irretrievable break-down" can only be established by proof "that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the filing of the application for dissolution of marriage". In Pavey v Pavey 3 the Full Court of Australia endorsed a statement that :

"separation can only occur in the sense used by the Act where one or both of the spouses form an intention to sever or not to resume the marital rela-tionship and act upon that intention, or alternatively act as if the marital relationship has been severed".

24.10. Our concept of the type of separation necessary for the purposes of our pro-posals coincides with that of the English Court in Santos v. Santos' and of the Aus-tralian full Court in Pavey v. Pavey. 3 Our recommendations have, therefore, been made on the basis of such a concept.

24.11. There is, however, another aspect of the concept of separation whioh needs to be clarified. This arises in relation to the question whether there can ever be separa-tion where husband and wife continue to reside under the same roof. Section 49(2) of the Australian Family Law Act makes it clear that there can be separation in such cir-cumstances by expressly providing thatrthe parties to a marriage may be held to have separated and to have lived separately notwithstanding that they have continued to reside in the same residence or that eithef party has rendered some household services to the other.: In so enacting the Australian legislature was reflecting previous case law as to the element of separation in the law of desertion in whioh the Court had examined the matrimonial relationship between the parties, where residence under one roof had continued, to see whether notwithstanding such residence there were really not one but two "households" in existence.

24.12. It is instructive in this regard to consider the approach of the Australian Full Court in the case of Pavey v Pavey 3 previously mentioned. In this case the parties to the marriage had continued to live in the matrimonial home throughout the relevant twelve-month period necessary to support a petition for divorce and, indeed, up to the time of the hearing of the divorce petition. As to this we quote from the Australian Law Journal 4 in which that case is discussed :

"The Full Court saw the essential issue as being whether the marriage had broken down irretrievably. The facts relied on to establish both s. 48 (2) and s. 49 (2) must be looked at in order to determine whether such break-down has occurred. Common residence suggested continued cohabitation. In such cases, because of the inherent unlikelihood that the marriage had broken down, the court would seek some explanation as to why the parties had continued to live under the same roof. The crucial question was whether there had been "a change in their relationship gradual or sudden, constitut-

8

ing a separation". This would lead to a consideration of the central issue, namely the nature of the matrimonial relationsthp that had subsisted be-tween the particular parties, and the changes that had taken place in that relationship. The court would have to decide whether those changes are such as to support a finding that the marriage had broken down. The Full Court endorsed the approach of Watson J. (a member of the Court) in Todd's case (No. 2) CCH Australian Family Law 75.079) that "what comprises the marital relationship for each cou will van Hence the attributes of in-cidents of the marital relationship that have been variously enumerated ap-pear in the nature of a catalogue or checklist whioh is valuable, but . not to be applied . mechanically including "living under the same roof, sexual -int er course, mutual society and protection, recognition of the existence of th marriage by both spouses in _public and private relationships", again as w stated in Todd's case.

The application of these principles should enable the court to answer the question whether there had been a separation, by considering whether "dur-ing the marriage, the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship". If so, "that aspect of their life may be of little importance in determining whether they have separated".

24.13. We think it desirable and accordingly recommend that a provision similar to that contained in section 49 (2) of the Australian Family Law Act be included in any legislation to implement paragraph 24.11 of this Report. It is our intention in so recommending that the common law principles stated in Payer v Pavey 3 and outlined in paragraph 24.9 above should apply to such a provision.

Alternative Proposal

25. If the 'no fault' theory is accepted but it is felt that one year's separation is not a true test, then we propose in the alternative that the irretrievable breakdown of a marriage should be evidenced by :

(a) two years separation with the consent of the respondent; or

(b) three year's separation without the necessity of consent by the respondent.

Petitions During early Years of Marriage :

26. From 1879 (when the first Divorce Law was enacted) until 1938 there was no restriction in the law as to the presentation of a divorce petition within the early years of a marriage. Such restriction was introduced by the Divorce Amendment Law of 1938. That provision, which is still in force today, prohibits the presentation of a peti-tion for divorce unless three years have passed since the date of the marriage. Excep-tionally however, it gives the Court a discretion to allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hard-ship suffered by the petitioner or of exceptional depravity on the part of the respondent. In determining whether to grant leave to present a petition within the three-year period the Judge is required to have regard to the interests of any children of the marriage and to question whether there is reasonable probability of a reconciliation between the parties before the expiration of the three-year period.

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26 : 1. This provision has its counterpart in the English Matrimonial Causes Act 1973 and in the divorce laws of many Commonwealth countries. Its enactment in Jamaica in 1938 was, however, not without some controversy. We considered whether it should now be abolished or modified or whether it should be retained in its present form.

26.2. Under the Australian Family Law Act of 1975 the general rule is that a divorce will not normally be granted unless the parties have been married for at least two years. Exceptionally, however, the court may hear an application for divorce if the court is satisfied (a) that the parties have considered reconciliation with the assistance of coun-selling or welfare officers or organisations of a specified kind; or (b) that there are special circumstances by reason of which the hearing should proceed.

26.3. We find the Australian provision attractive because of the shorter period of restriction on divorce for which it provides and the greater flexibility whioh it allows to the Court in the exercise of its discreton as to the hearing of a petition for divorce within the two-year period. We are of the view however, that the grounds for the exer-cise of discretion should be cumulative and not disjunctive.

26.4. We recommend, therefore, that the court be prohibited from hearing a petition for divorce if a period of less than two years has elapsed since the date of the marriage, but that exceptionally the court be given a discretion to hear the proceedings if it is satisfied that :

(a) there are special circumstances by reason of which the hearing should proceed; and

(b) that the parties have considered reconciliation with the assistance of a marriage counsellor.

Hardship to the Respondent

27. Under the U.K. legislation, where a petition for divorce alleges five years separa-tion the respondent may oppose the decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all circumstances be wrong to dissolve the marriage. If the court is of the opinion that this ground has been established it must dismiss the petition. The Committee discussed the question whether a similar provision should be included in the Jamaican legislation.

27.1. There are two limbs to the ground of opposition under consideration. On the first limb one of two things must be established, that is, that either grave financial hard-ship or other grave financial hardship would result from the dissolution of the marriage. If either of those two things is established the Court must go on to determine whether

or not it would be wrong in all the circumstances to dissolve the marriage.

27.2. It appears that in most of the cases under the U.K. Act reliance has been placed on the ground of "grave financial hardship" and the major cause alleged for such hard-ship has been the loss of benefits under pensions and similar schemes. Where "other grave hardship" has been relied on the cause alleged has usually been social ostracism or religious scruples and reports of decided cases indicate that such a ground has not usually been established to the satisfaction of the Court.

27.3. In practice then the cause of hardship which has been successfully relied on under the U.K. legislation has usually been the loss of benefits under pensions and simi-lar schemes. In Jamaica it is not often that one spouse stands to benefit directly under the pensions or similar schemes of the other spouse. We are therefore of the view that

provision for a ground of opposition to a decree of dissolution of marriage similar to that contained in the U.K. legislation should not be included in the Jamaican legislation.

Restrictions on decrees for dissolution or nullity a ffecting children

28. Section 41 of the Divorce Act requires that the Court shall not make absolute a decree of dissolution or nullity of marriage or make a decree of judicial separation unless it is satisfied as respect childr of bott_p_arties to the marriage or children of one party accepted by the other–as parto t_e family—termed relevant-c-hildren'—where such children are tinder sixteen years; that :

"(a) an ments for his care and upbringing have been made and are satis actory or are the best that can be devised in the circumstances; Or

(b) it is impracticable for the party or parties appearing before the Court-to make any such arrangements".

However the court may proceed to make the decree absolute, or the decree, as the case may be, if

"(a) it appears that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay; and

(b) The Court has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children before the Court within a specified time".

28.1. We are of the view that the provision in Section 41 of the Act should be re-tained as regards the making absolute of decrees of dissolution or nullity of marriage. We recommend, however, that that provision should be amended to refer to relevant _ children under.eighte_en years.

Counselling Services

29. We appreciate that if our recommendations are adopted there will be the need for adequate counselling services, as the Court, before granting a divorce, yvould have to be satisfied that all reasonable efforts have been made at reconciliation.

29.1. The idea of using Counsellors in handling family affairs is not new as the Family Courts already have the services of trained Family and Marriage Counsellors.

29.2. It is recommended that Family and Marriage Counsellors be assigned to the Supreme Court also with the following functions :

• (i) to assist the parties to a marriage in their efforts at reconciliation;

(ii) to provide counselling in relation to divorce problems and generally to assist the parties in resolving such problems whether before or after a divorce;

(iii) to provide counsel, assistance and supervision in relation to ques-tions of custody of and access to children of the family;

(iv) to make reports to the Judge on any of the matters at (i) to (iii) and generally as to matters affecting the welfare of the parties or the children of the family or as to the prospects of improvement of the marital relationship.

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29.3. We suggest also that the Court in considering a petition for dissolution of mar-riage could make use of a Probation Officer's report.

Bars to Divorce

30. Under existing law notwithstanding the fact that a petitioning spouse can prove that the respondent spouse has committed a matrimonial offence the Court is, in certain circumstances, absolutely prohibited from granting to the petitioner a decree of dissolu-tion of the marriage and, in other circumstances, the Court has a discretion whether or not to grant the petition. These prohibitions and discretionary powers are respectively referred to as "absolute bars" and "discretionary bars".

Aboslute Bars

31. Where the ground for divorce is adultery the Court must dismiss the petition if the petitioner has been accessory c„; or m*.eci_at or condoned the adultery. This has been the law since 1879 when the first Divorce Law made adultery a ground for di-vorce. Similarly, since 1938 when cruelty became a ground for divorce, a petition on that ground must be dismissed if the petitioner has condoned the cruelty. The most recent ground for divorce of five years separation may, in a sense, be also said to have brought with it its own absolute bar, as a defended petition for divorce on that ground must be dismissed unless the petitioner proves that the separation was wholly or sub-stantially due to the wrongful act or conduct of the respondent.

31.1. There are no absolute bars to divorce on the other existing grounds.

31.2. With the abolition of adultery, cruelty and five year separation as grounds for divorce the absolute bars to divorce on those grounds will necessarily be abolished.

31.3. We feel also that the ground for divorce which is recommended in this Report ought not to be qualified in the way that the five year separation ground is now quali-fied as that could have the effect of. reintroducing, through a back door, the fault con-cept of divorce which we are anxious to remove from the law..

Discretionary Bars

32. There are four discretionary bars which apply to all grounds for divorce. These are collusion with the respondent in the presentation of the petition, adultery by the petitioner, unreasonable delay in presenting or prosecuting the petition and cruelty by the petitioner towards the respondent. These discretionary bars were related in 1879 to divorce for adultery and have been extended to the new grounds for divorce as these have been introduced.

32.1. The essence of collusion is that the initia tion or conduct of a suit has been. in some measure procured or determined by agreement between the petitioner and the respondent or co-respondent. Up to 1969 collusica was an absolute bar to divorce but by virtue of the Divorce (Amendment) Act of that year it became a discretionary bar. The intention then was that it would no longer be . appropriate to treat all collusion as mischievous so that a collusive bargain which was, in the ordinary sense of the word, corrupt would be a matter for the exercise of the court's discretion to refuse to grant a decree while a collusive bargain which represented an honest negotiation between the parties, which was not intended to deceive the court either by putting forward false evidence or suppressing or withdrawing a good defence and which was part of an agreement intended to make reasonable provision for the parties to it would be a per-fectly reputable transaction which could be negotiated without objection.

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32.2. With the radical change proposed by this Report as to the concept of divorce there will be no room for collusion as it now exists, as a discretionary bar to divorce, because where the else presented to the court is false the court will be obliged to refuse to grant a decree...,

32.3. It is therefore recommended that collusion as a discretionary bar to divorce be abolished.

32.4. The retention of the petitioner's adultery or cruelty towards the respondent as discretionary bars to divorce would be inconsistent with our proposals to put an end to divorce based on the matrimonial fault concept. It is therefore recommended that ,'" those bars be abolished.

32.5. The concept of no-fault divorce, w.Lich is the basis of our recommendation in paragraph 17, reflects the view that it would be contrary to public policy to insist on the continuation of a marriage which has irretrievably broken down. This being so we consider that it would be iibgical and productive .of tension and unhappiness, if unreasonable delay in presenting or prosecuting the petition were to remain a discre-tionary bar to divorce,_ We therefore recommend its abolition.

32.6. In relation to petitions on the ground of adultery, unsoundness of mind or de-sertion, the petitioner's wilful neglect or misconduct conducing to the adultery un-soundness of mind or desertion is a discretionary bar to divorce while desertion or wilful separation by the petitioner without reasona'31e excuse, before the acts complained of, is a discretionary bar to divorce on the ground of adultery or cruelty. Like the absolute bars these discretionary bars ust necessarily cease when the grounds to which they relate are abolished.

Presumption of Death and Dissolution of Marriage

33. Since 1938 the Court has been empowered to make a decree of presumption of death and dissolution of marriage on the petition of one of the parties to the marriage if satisfied that reasonable grounds exist for supposing that the other party to the mar-riage is dead. In such proceedings the fact that for a period of seven years or upwards the other party to the marriage has been continually absent from,the petitioner and that the petitioner has no reason to believe that the other party has been living within that time is evidence that that other party is deal until the contrary is proved.

33.1. This provision is subject to the usual rules as to decree nisi and decree absolute which are applicable to divorce and nullity decrees.

33.2. We feel that this remedy could continue to be a useful one in certain circum-stances notwithstanding implementation of our recommendations for divorce on the ground of irretrievable breakdown of marriage as evidenced by twelve months separa-tion. We therefore recommend the retention of this remedy.

Void and Voidable Marriages

34. At present there exists a distinction between a marriage which is void and one that is voidable.

34.1. A void marriage is, of no effect: because of a fundamental defect it has never come into existence. A decree of nullity is therefore not necessary to declare it void. However either of the parties to a void marriage, or any person having a sufficient in-terest in so doing, may petition for a decree of nullity whether during the lifetime of the parties to the marriage or after their death.

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34.2. A voidable marriage is a valid marriage until a decree of nullity is pronounced by the Court in respect of it.

However the only persons who may petition for the annulment of such a marriage are the spouses themselves and such a marriage cannot be annulled after the dea h of either spouse.

34.3. The grounds on which a marriage is void are : (a) that the parties to the marriage are within the prohibited degrees

of consanguinity or affinity; (b) lack of capacity Ly reason of non-age; (c) invalidity of the ceremony of marriage; (d) that there was at the time of the marriage a prior existing marriage

of one of the parties to the marriage. There is also possibly a fifth ground on which a marriage is void, that is—

(e) lack of consent to the marriage, whether by reason of duress, fraud, mistake or unsoundness of mind.

34.4. All these grounds are recognised by section 7 of the Divorce Act, and have been recognised since the enactment of the Divorce Law of 1879, as grounds on which decrees of nullity may be pronounced. The Divorce Act does not, however, itself state whether those grounds render a marriage void or voidable. It is, in fact, the Marriage Act which renders a marriage void on grounds (a)—(c) while at common law, der:ving from the ecclesiastical law, a marriage is void on ground (d). It is still a matter of doubt whether ground (e) renders a marriage void or voidable.

34.5. The grounds on which a marriage is voidable are, in addition to the polsible ground listed at .(e) of paragraph 34.3_ above,

•(a) that the respondent has wilfully refused to consummate the mar-riage;

(b) that at the time of the marriage either party was of unsound mind; or was suffering from a mental disorder which made him or her unfit for marriage and the procreation of children, or was subject to recurrent attacks of insanity or epilepsy;

(c) that the respondent was at the time of marriage suffering from venereal disease in a communicable form;

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner;

(e) the physical incapacity of either party to consummate the marriage.

34.6. Where the petitioner relies on grounds (b), (c) and (d) the Court cannot grant a decree of nullity unless it is satisfied :

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that the proceedings were instituted within a year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

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34.7. Grounds (a)—(e) of paragraph 34.5 are statutory grounds which were intro-duced into the law by the Divorce Amendment Law, 1938, with an amendment to ground (b) by the Divorce (Amendment) Act, 1969, and are now governed by section 7 (2) of the Divorce Act. Ground (d) existed under ecclesiastical law and was recognised by the Divorce Law of 1879, and now by section 7 (1) of the Divorce Act, as a ground of nullity.

34.8. The first question which the Committee considered was whether the category of voidable marriages should be retained.

34.9. In the old Canon law there were no voidable marriages. Marriages were either valid or void from inception. In other words, there was either a good and lawful marriage or no marriage at all. The category of voidable marriages came into exist-ence in English law after the Reformation. Marriages subject to civil disabilities (e.g. bigamous manages) continued to be treated as void marriages but marriages subject to canonical disabilities (e.g. impotence) came to be treated as voidable only.

34.10. The existence of a class of voidable marriages creates uncertainties and in-conveniences. When a voidable marriage is annulled it is declared void from its in-ception. Until such a decree of annulment is made absolute, however, the marriage is in law a good and effective marriage. The voidable marriage, therefore, creates un- certainties as to rights acquired under marriage settlements as these may fail or be- come liable to be set aside upon the annulment of the marriage. The law too is un- lu? certr in as to the effect of a decree of annulment on a bigamous marriage of a .party to a voidable marriage.

34.11. We regard the concept of the voidable marriage which is valid until annulled and void thereafter as highly artificial. We are of the opinion that the only distinction should be one between valid marriages terminable only by dissolution or death and void marriages, that is, marriages which have never come into effect.

34.12. One of the methods of achieving this position would be the conversion of they grounds on which a voidable marriage may now be annulled into grounds for divorce as situations from which an irretrievable breakdown of the marriage can be inferred and the abolition of those grounds as grounds of nullity. This is a proposition which was considered and rejected by the English Law Commission: We are not in favour of it as it would mean the perpetuation of the fault concept of divorce which we totally reject.

34.13. We recognise that the uncertainties and inconveniences arising from the law relating to voidable marriages can be removed by a provision similar to that enacted in ti e United Kingdom in section 16 of the Matrimonial Causes Act 1973 on the recom-mendation of the Law Reform Commission. By that provision, decrees of nullity granted in respect of a voidable marriage operate to annul the marriage only as respects any time after the decree has been made absolute and, notwithstanding the decree of nullity, the marriage is treated as if it had existed up to that time.

34.14. In Australia, however, the legislature took a more fundamental step. There, section 51 of the Family Law Act 1975 providas that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void.

34.15. We prefer the more' fundamental Australian approach. We therefore recom-mend, subject to what we say in paragraph 34.16 below, that the category of voidable marriages be abolished and that a decree of nullity be granted only on those grounds on which such a decree may now be granted in respect of a void marriage.

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34.16. For these purposes we considered whether lack of consent, whether by reason of duress, fraud, mistake or unsoundness of mind, should be regarded as rendering a

. marriage void. The present law on this point is not clear.

✓34.17. We are of the view that in the co:Itract of marriage consent should be regard-ed, as in all other contracts, as a vital element. We therefore feel that where, because of duress or fraud, mistake or unsoundness of mind, there is no consent to a marriage, that marriage should be void. When we speak here of mistake we mean the type of mistake which under the present law may vitiate consent to marriage, that is, mistake as to the identity of the other party to the marriage or as to the nature of the ceremony. By unsoundness of mind we mean too only such unsoundness of mind as rendered the party incapable of understanding the nature and effect of the marriage ceremony. This is now the law in Australia.

34.18. We therefore recommend that the law be amended to make it clear that a marriage is void where there has been no consent to that marriage because the ap-parent consent was obtained by duress or fraud, or either party was mistaken as to the identity of the other party or as to the nature of the ceremony undergone, or where either party was incapable by reason of unsoundness of mind from understanding the nature and effect of the marriage ceremony. Such a provision should be lim;ted to marriages celebrated after the coming into force of the legislation recommended. /

Remedies which Fall Short of Dissolution

35. Remedies considered under this head were : (a) Restitution of conjugal rights (b) Jactitation of Marriage (c) Damages for adultery (d) Judicial Separation

Restitution of Conjugal Rights

36. This is a decree which calls upon the spouse in desertion to resume cohabitation with the petitioner. This remedy was brought mainly because of the ancillary orders, particularly maintenance orders, which the Court could make on a petition. Since separate proceedings can now be brought for maintenance, this remedy has fallen into disuse 6

. We recommend that it be abolished.

Jactitation of Marriage

37. Jactitation of marriage is a remedy in the form of an injunction restraining a respondent from wrongly holding himself out to be the spouse of the petitioner. In England such suits were brought in the Ecclesiastical Court until the Matrimonial Causes Act 1857 transferred the jurisdiction of that Court to the civil court for Divorce and Matrimonial Causes. In this Committee's Interim Report it was stated that there was no evidence that this remedy had been used in Jamaica and its abolition was re-commended. Following on the Interim Report, however, grave doubts have arisen as to Whether the Jamaican Courts have ever had jurisdiction in suits for .jactitation of Marriage.

37.1. By section 3 of the Divorce Law, 1879 the Supreme Court of Judicature of Janiaica was constituted a Court for Divorce and Matrimonial Causes. The various matters over which that Court was given jurisdiction were detailed in section 3 of the 1879 Law. There was no mention in that section of either suits for jactitation of marriage or suits for restitution of conjugal rights, and, it now appears that there were no words

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in that Law which could be construed as conferring such jurisdiction. By the Divorce (Restitution of conjugal rights) Law, 1914, jurisdiction and power to pronounce and enforce decrees of restitution of conjugal rights was conferred on the Supreme Court. There has never been, however, any amendment of the Divorce Law to confer on the Court jurisdiction in respect of suits for jactitation of marriage.

37.2. On the basis of that historical background, it appears that the better view is that, in this respect, the position under Jamaican Law differs from that under English law and that the Supreme Court of Jamaica has never been given jurisdiction in suits for jactitation of marriage. We are also of the opinion that such jurisdiction should not now be conferred.

Petition for Damages for Adultery

38. At common law a husband had an action for criminal conversation by means of which he could obtain damages against a man who had committed adultery with his wife. This action was based on the quasi-proprietary interest which the husband had in the wife. That action was abolished by the Divorce Act of 1879. By that Act, however, a husband was given the right, either in a petition for divorce or for judicial separation or in a petition for that purpose, to claim damages from any person on the ground of his adultery with the petitioner's wife.

38.1. Petitions for damages for adultery are still permitted by the Divorce Act to be brought by a husband. They are governed by the old principles which had applied to actions for criminal conversation. The damages are required to be assessed by a jury and take into account such factors as the wife's financial position, her assistance in the husband's business, her ability in the home and her character and conduct generally. They may be apportioned by the Court for the benefit of the children of the marriage or for the wife's maintenance.

38.2. A wife has no similar right to claim damages from a woman who has commit-ted adultery with her husband.

t 7 38.3. The Committee sees no justification for the retention of this remedy. Further we think that allowing a claim for damages for adultery would be inconsistent with our proposals to remove the concept of specific fault as a basis for a divorce. It is, therefore, recommended that petitions for damages for adultery be abolished. .

Judicial Separation

39. The Divorce Law of 1879 enables a husband or a wife to petition the Supreme Court for a decree of Judicial Separation on the following grounds :

(i) adultery (ii) cruelty {iii) desertion without cause for three years or more.

The effect of the decree was the same as that of a divorce a mensa et thoro under English ecclesiastical law before the coming into force of the (English) Matrimonial Causes Act, 1857. In other words, the spouse to whom the decree was granted was entitled to live apart from the other spouse but the marriage bond was not dissolved.

39.1 The Court was empowered, in proceedings for Judicial Separation, to make orders for the custody, maintenance and education of the children of the parties; and, on a wife's petition, could order payment of alimony. Also, on the grant of a decree of

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Judicial Separation the wife was considered as a single woman in respect of property acquired by her. This was an important advantage at a time when a married woman's capacity to hold property was restricted by law.

39.2. It was relevant also to mention that under the 1879 Law, a husband could divorce his wife on one ground only, namely adultery, and the grounds available to a Wife were limited to various aggravated forms of adultery, or rape, sodomy or bestiality. This meant that in many cases the only form of matrimonial relief available to a spouse was Judicial Separation.

39.3. By virtue of an amendment made to the Divorce Law in 1938 a decree of Judicial Separation may now be sought :

(i) On the same grounds as a decree of divorce; or (ii) on the ground of failure to comply with a decree of restitution of

conjugal rights; (iii) on any ground on which a decree for divorce a mensa et thoro could

be pronounced, that is, the respondent's adultery, or cruelty, or, if the wife were the petitioner, on the grounds that the husband had committed rape or an unnatural offence.

The 1938 Law, however, had also added desertion, cruelty and insanity as grounds for divorce. Hence the remedy of Judicial Separation lost much of its former advantage because relief through divorce now became obtainable where, formerly, the only remedy had been Judicial Separation. By 1941 too, most of the restrictions on a married woman's capacity to hold property had been removed and therefore the provision which enabled a wife, on a decree of judicial separation, to be considered as a single woman in respect of property acquired by her, had lost much of its significance. Also, by an amendment to the law in 1969 a wife was given the right to apply for maintenance where her husband had been guilty of wilful neglect to maintain her or any child of the marriage and where the Court would have had jurisdiction to entertain proceed-ings by the wife for Judicial Separation. On such an application the court is empowered to make an order not only for the maintenance, but also for the custody and education, of the children. The remedy of Judicial Separation thus lost its importance as a means of obtaining ancillary relief.

39.4. The remedy of Judicial Separation, therefore, has progressively lost its im-portance and the question is whether it should be retained.

39.5. In England the Royal Commission on Marriage and Divorce, which reported in 1956, considered that the remedy of Judicial separation should be retained but should only be available in respect of grounds for which it was a suitable form of relief. In deciding on what grounds Judicial Separation should be available as an Alternative remedy to divorce, they adopted the test of the safety and protection of the injured spouse. This, they pointed out, was the principle which had guided the Ecclesiastical Courts in granting divorce a mensa et thoro.

39.6. We agree that the important consideration is the safety and protection of the injured spouse, and/or, we would add, of the children of the parties to the marriage. However, we believe that Judicial Separation, while it has lost most of its advantages to the petitioning spouse, may cause undue hardship to the spouse against whom the decree is made. That spouse remains tied in marriage to the petitioning spouse who, on the other hand, is entitled to refuse to resume cohabitation with him or her. We therefore feel that the remedy of Judicial Separation should be abolished and that some other method of ensuring the safety and protection of a spouse and the children should be found.

39.7. For this purpose we have looked at both the Domestic Violence and Matri-monial Proceedings Act, 1976, enacted in England and section 114 of the Family Law Act, 1975 of Australia.

39.8. In England the remedy of Judicial Separation has been retained on narrowed grounds. However, provisions of the Domestic Violence and Matrimonial Proceedings Act, 1976 give the country court jurisdiction, on the application of a husband or wife, to grant an injunction restraining the other spouse from using violence against the applicant or a child living with the applicant, or to exclude the other spouse from the matrimonial home. The judge is also empowered to attach a power of arrest to the injunction where he is satisfied that the ether spouse has caused actual bodily harm to the applicant or child and is likely to do so again. The Act also enables a spouse who has statutory rights of occupation of, or legal rights to, the matrimonial home to obtain from the court an order to prohibit, suspend, or restrict the .other spouse's rights of occupation or to permit the applicant to exercise such rights. •

r. 39.9. In Australia the remedy of Judicial Separation has been abolished. The 1975 Act given the court wide and flexible powers to make orders or to grant injunctions, in circumstances arising out of a marital relationship, including injunctions-

(i) for the personal protection of a party to the marriage or of a chili] of the marriage; or

(ii) for the protection of the marital relationship; or (iii) in relation to the property of a party to the marriage; or (iv) relating to the use of occupancy of the matrimonial home.

The Court in such cases may also make an order relieving the husband or wife from any obligation to perform marital services or render conjugal rights.

.39.10. The Committee take the view that the flexibility of the provisions of the Australian statute is desirable in dealing with problems as to the protection of .a spouse or children of a marriage.

• 39.11. It is therefore recommended that the remedy of Judicial Separation be a-bolished and that legislation be enacted, as was done in the Australian Family Law Act (the terms of which are set out in Appendix III, empowering the Supreme Court in proceedings for an order or injunction in circumstances arising out of a marital rela-tionship, to make orders, or injunctions with respect to the matters to which the pro-ceedings relate including injunctions for any of the purposes listed at (i) to (iv) of para-graph 39.9 above. Failure, without reasonable cause, to comply with such an order or injunction should, without prejudice to the Court's power to punish for contempt, be punishable by a suitable fine. It is also recommended that, as in the Australian provi-sion, the Court in exercising the jurisdiction recommended in this paragraph he given a discretion to make an order relieving a party to a marriage from any obligation to perform marital services or to render conjugal rights.

JURISDICTION OF THE COURT IN MATRIMONIAL CAUSES . 40. The Supreme Court as the Court for Divorce and Matrimonial Causes is now

empowered to pronounce and enforce decrees of dissolution of marriage, judicial separa-tion; nullity, restitution of conjugal rights and of presumption 'of death and dissolution of marriage and to grant damages for adultery. Earlier in this Report we made recom-mendations for the abolition of the remedies of :

(i) restitution of conjugal rights (para. 36); (ii) damages for adultery (para. 38.3); and (iii) judicial separation (para. 39.11.)

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We also concluded that the Supreme Court of Jamaica has never been given jurisdiction in suits for jactitation of marriage and stated our opinion that that jurisdiction should not now be conferred. Our considerations as to jurisdiction in matrimonial causes will therefore have no reference to those remedies and will relate only to the following :

(i) divorce; (ii) nullity; (iii) presumption of death and dissolution of marriage; (iv) orders or injunctions arising out of matrimonial relationships granted

for the purposes specified in paragraph 39.9; (v) wilful neglect to maintain.

Domicile

41. Before looking at the existing jurisdictional grounds for the remedies with which we are concerned we find it convenient to set out the basic principles regarding domicile as it is a predominant concept in that area of law .

41.1. The concept of domicile is not the same as that of nationality although the country of a person's domicile may be the same as the country of which he is a national. Nationality denotes a man's political allegiance to a particular state. In relation to domicile it has been said that it is impossible to lay down an absolute defintion but definitions have been suggested. Domicile may be said to be the legal relationship, and usually the factual relationship, between a person and a territorial area subject to one system of law which arises from that person's residence in that territory and the inten-tion of making it his home permanently or indefinitely; or, in the case of infants and married women, such a relationship on the part of someone else on whom the person is for this purpose legally dependent.

41.2. Every person has a domicile at all times, and no one has more than one domi-cile at any given time. At birth each person acquires a domicile which is called the domicile of origin and which is dependent on that of one or other of his parents at the time of his birth. Thus, a child born in wedlock has his domicile of origin in the country in which his father is domiciled at the time of his birth, while a child born out of wed-lock has his domicile of origin in the country in which his mother is domiciled at the time of his birth. During minority a person's domicile continues to be a dependent domicile and changes with that of the parent on whom his domicile depends.

41.3. The domicile of a married woman is always dependent on that of her husband. In other words, on marriage a woman acquires the domicile of her husband and her domicile will change with every change of her husband's domicile during the subsistence of the marriage.

41.4. Every independent person can change his or her domicile by acquiring a domi-cile of choice. Acquisition of a domicile of choice arises from a combination of resi-dence in a particular country and an intention to reside there permanently or indefinitely.

Existing bases of jurisdiction Divorce

42. The Court has jurisdiction to dissolve a marriage if the husband, and therefore the wife, since she takes her husband's domicile on marriage, is domiciled in Jamaica

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when the petition is presented. The concept of domicile as the basis of the Court's jurisdiction is the result of judicial decision and not legislation although the Divorce Act implicity recognises this basis?

42.1. Statute has extended the basis of the Court's jurisdiction to grant a decree of divorce by providing that the Court may entertain the petition of a wife:

(a) if she has been deserted by her husband or her husband has been de-ported from Jamaica and the husband was immediately before the desertion or deportation domiciled in Jamaica, notwithstanding that he has changed his domicile since the desertion or deportation. (Section 22 of the Divorce Act); or

(b) notwithstanding that the husband is not domiciled in Jamaica, if the wife is resident in Jamaica and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings. (Section 23(1) of the Divorce Act).

Also where the wife has petitioned on either of the two jurisdictional bases mentioned above the Court has been given a statutory jurisdiction to hear a cross petition of the husband presented under Section 30 of the Divorce Act—Section 30(2) of the Act.

Nullity

43. The Court may assume jurisdiction in respect of decrees of nullity on the same bases on which it exercises jurisdiction in divorce and also :

(i) where the petitioner only is domiciled in Jamaica; 8 (ii) possibly where the respondent only is domiciled in Jamaica; 9 (iii) where both parties are resident in Jamaica at the commencement of

the suit;'° (iv) where the marriage was celebrated in Jamaica and is void ab initio. 12

(v) where the marriage was celebrated in Jamaica and is void ab initio. 12

Presumption of death and dissolution of Marriages

44. The grounds on which the Court will assume jurisdiction in proceedings for presumption of death and dissolution of marriage are now' governed entirely by statute. They are as follows :

(i) in any proceedings, domicile of the petitioner in Jamaica; (ii) in proceedings by the wife, if she is resident in Jamaica and has been

ordinarily resident there for a period of three years immediately pre-ceding the commencement of proceedings.

In determining for these purposes whether a woman is domiciled in Jamaica, her hus-band is treated as having died immediately after the last occasion on which the wife knew or had reason to believe him to be living. Section 23(3) of the Divorce Act.

Wilful neglect to maintain

45. The Court has jurisdiction to maintain an application for periodical payments against a husband who has been guilty of wilful neglect to maintain his wife or any infant child of both parties to the marriage where the Court would have had jurisdic-tion. 13 This has been held to mean; not that grounds for judicial separation must exist

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so that a decree could be pronounced, but that the status of the parties, insofar as domi-cile or residence is concerned, is such that the Court would have jurisdiction. 14

45.1. In effect then, the Court will have jurisdiction in proceedings for wilful neglect to maintain in the following circumstances :

(i) all the cirpustances in which the Court would have jurisdiction to hear petitions for dissolution of marriage;

(ii) where both parties are resident in Jamaica at the time of the institution of the suit; or

(iii) where the respondent alone is resident in Jamaica at the time of the institution of the suit; or

Proposed changes in the jurisdictional grounds Divorce

46. In considering the question of jurisdiction in divorce proceedings we agree with the views expressed by the English Law Commission in their Working Paper No. 28 on Family Law; Jurisdiction in Matrimonial Causes (other than Nullity) as to the main objectives of any rules governing such jurisdiction. Those objectives are :

(a) The rules should enable relief to be granted to those whose connections with the country are sufficiently close for the marriage and its break-down to be a matter of real and substantial interest to the country.

(b) They should be such that persons who reasonably regard themselves as belonging to a country should not be excluded by them.

(c) They should not be so wide as to encourage "forum-shopping" whether for the advantage of obtaining divorce or ancillary relief.

(d) They should avoid the creation of hardship and anomalies. (e) They should avoid, so far as possible, the creation of limping marriages. (f) The law in this field should be clearly ascertainable and its practical

application as precise as possible.

Domicile

47. The concept of domicile, within the meaning of the Jamaican Law and through. out the Commonwealth, involves, more often than not, and save as may be the case regarding dependent domiciles, a real and substantial connection between a person and his country of domicile. Domicile has been the common law basis for jurisdiction in divorce proceedings in the Commonwealth and has been retained as a jurisdictional basis in such proceedings in many of the Commonwealth countries which have replaced the common law jurisdictional rules by statutory provisions. We are of the view that in Jamaica also domicile should be retained as a statutory basis of jurisdiction in suits for divorce. Having regard to our recommendations in paragraph 55.6. for non-depen-dent domiciles for married women for purposes of jurisdiction in matrimonial causes, we are further of the view that the domicile of either party to the marriage should be a jurisdictional basis in divorce suits.

47.1. Difficulties arising from the strict application of the principles of dependent domiciles led to the statutory incursions into the domicile basis which are noted in paragraph 42.1. above. Those difficulties will be entirely removed if our recommenda-tion in paragraph 55.6 regarding the married woman's domicile is adopted. Other difficulties would be removed by the adoption of our recommendation in paragraph

22

56.2 for the non-dependent domicile of married minors. There would still remain however the possibility of problems arising, for example—albeit in a minority of cases—where a person whose domicile of origin is in country A acquires a domicile of choice in country B and later abandons country B and, hence, his domicile of choice there, but has formed no settled intention as to the country in which he will establish his resi-dence on a permanent or indefinite basis, with the result that he reverts to his domicile of origin in country A which may be a country in which he is not residing and, perhaps, has never resided. There may also be many cases in which other factors establish a close and real connection between a person and a country other than the country of his domicile. We feel, therefore, that domicile should not be the sole and ecxlusive basis of jurisdiction in suits for divorce.

Residence

48. The first factor which we will consider for this purpose is residence.

48.1. Mere residence in Jamaica at the time of the institution of proceedings, or resi-dence which is otherwise of a transient nature, cannot. in our view, suffice to ground jurisdiction in divorce suits. If the rule were otherwise it would encourage "forum-shop-ping", that is, residence in a country simply for the purpose of taking advantage of the facilities offered by that jurisdiction in its divorce proceedings and the remedies ancillary to divorce which are available there.

48.2. It is our opinion, however, that residence in a country over a sufficiently ex-tended period can create in a person a sense of belonging to that country or can give the country a real interest in the outcome of a marriage or divorce such as would justify the establishment of residence as a basis of jurisdiction for divorce. The question re-mains : How long should that period of residence be? A three-year period of resi-dence is now used in section 23 of the Divorce Act in cases of petitions by a wife. We regard that period as usually long. In our view a period of residence in a country for one year or more could hardly be regarded as transient. We consider that period to be sufficiently long to establish such connections between the resident and the country as would justify its choice as a jurisdictional basis for divorce. This is the period of residence used for jurisdictional purposes in divorce proceedings in other countries such as Australia, 16 Bermuda,'? and England. 18

48.3. We also considered the further question : Whose residence should it be? The petitioner's or the respondent's? Or should it be the residence of both the parties to the marriage or of either? In our view the residence of both parties to the marriage is not essential to establish the necessary connection with the country; residence of either party would suffice. We therefore consider the residence of either party, over the specified period, to be sufficient to ground jurisdiction in divorce. 19

48.4. To denote the nature or type of residence which would ground jurisdiction in divorce the English Domicile and Matrimonial Proceedings Act 1973 refers to a person who "was habitually resident in England and Wales" over the necessary period. The term "habitually resident" there used reflects the terminology of the Hague Convention on the Recognition of Divorce and Legal Separations which follows terminology com-mon in the civil law countries. There is however a similar term "ordinarily resident"—which is well-known to common law jurisdictions and has been used for the purposes of jurisdiction in matrimonial causes in a number of Commonwealth countries. It is already a familiar concept in Jamaica in the existing Divorce Act where it is used in section 23(3)(b), to describe the type of residence necessary to ground jurisdiction in divorce proceedings by a wife. As is said in Dicey and Morris, Conflict of Laws, for ordinary residence "uninterrupted presence is not necessary and...temporary absence may be innocuous, e.g. if the wife spends some weeks abroad on holiday or some months

23

abroad with her husband while he is on a business trip provided she does not sever her connection with England."20 We prefer to retain that terminology for the purposes of jurisdiction in divorce proceedings. The Australian Family Law Act which also uses the term "ordinarily resident" goes on to define it as including "habitually resi-dent". We do not think it necessary to include such a definition in the Jamaican law.

Nationality

49. Nationality is a well known concept. No doubt the man on the Cross Roads JOS bus, if asked what his nationality is, would have a ready answer. At any rate a person's nationality is usually easily ascertainable. The close connection which often exists between a person and the country of which he is a national was recognised by the English Law Commission in their Working Paper on Family Law: Jurisdiction in Matrimonial Causes (other than Nullity) from which we quote :

Nationality often indicates the type of relationship between a person and a country which makes it reasonable for the person to ask the courts of that country to determine his or her marital status and for the courts to grant that request. The vast majority of persons do have a close connection with the State of which they are nationals. If "belonging" is the test, nationality clearly counts21

Although it is well known that Jamaicans travel far and wide—indeed it is said that a Jamaican can be found in every country of the globe—and migration of Jamaicans has increased in recent years, yet we feel that there remains in most cases a strong connec-tion between the Jamaican national and Jamaica, even where dual nationality has been acquired. This being so, we are of the opinion that the Jamaicn nationality of either party to a marriage should constitute a ground for jurisdiction in divorce suits.

Nullity

50. In paragraph 34.15 we have recommended that the category of voidable mar-riages be abolished and that a decree of nullity be granted only on those grounds on which a decree may now be granted in respect of a void marriage. In our considera-tions as to jurisdiction in nullity proceedings we will therefore have regard to void marriages only. We include among that category marriages void for lack of consent. See our recommendations in paragraph 34.18. above.

50.1. Although a decree of divorce terminates a subsisting marriage while, in the case of void marriages, a nullity decree declares that there never was a valid marriage, essentially both decrees of divorce and of nullity determine status and in both types of suit the Court has power to grant ancillary relief. Nevertheless, as may be seen from paragraphs 42, 42.1 and 43 of this Report, the existing common law jurisdictional grounds for nullity are wider than those for divorce. Mere residence in Jamaica of either petitioner or the respondent at the institution of the suit, and in the case of a void marriage, the celebration of the marriage in Jamaica suffice to ground jurisdiction in nullity.

50.2. In our view mere residence in Jamaica at the time of the institution of the suit—which is something which could be of a transient nature—does not constitute a strong enough connection with the country to justify its use to ground jurisdiction in proceedings which determine status. We are, therefore, of the opinion that the jurisdictional grounds in nullity proceedings which are referred to at (iii) and (iv) of paragraph 43 above should be abolished.

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50.3. Authority for the rule that in nullity suit, where the marriage is alleged to be void, as distinct from voidable, the courts may assume jurisdiction on the basis that the marriage was celebrated in Jamaica, goes back to the old English case of Simonin v. Mallac 12—where the English court assumed jurisdiction in such a suit on the basis of the celebration of the marriage in England. The English Court's reason for so doing was that "the parties by professing to enter into a contract in England, mutually gave to each other the right to have the force and effect of that contract determined by an English tribunal". We regard it as significant, however, that on the question of void marriages, of the six members of the House of Lords in Ross Smith v. Ross Smith, 9 five considered that the reason given in Simonin v. Mallac 12 was erroneous and three were prepared to go so far as to overrule the decision. The House of Lords, therefore, was equally divided on the question whether the court has jurisdiction to annul a mar-riage alleged to be void merely because it was celebrated in England. As Dicey and Morris comment: "Hence the older cases deciding that it has jurisdiction remain good law, however anomalous this may seem". (The underlining is our own.) All this serves to underscore the unsatisfactory nature of the common law basis of this jurisdictional ground.

50.4. We would also regard as applicable to this jurisdictional ground, the same con-siderations which we apply in paragraph 50.2 above to residence in Jamaica at the in-stitution of the suit. There have been many instances of persons who, attracted by the natural beauty of Jamaica and its climatic conditions, have come here to celebrate their marriage and, thereafter, to spend a brief honeymoon. Consequently, we do not regard the celebration of the marriage in Jamaica as, in itself, affording a sufficient connection with Jamaica to justify the assumption by the Jamaican Courts of jurisdiction in nullity suits on that basis. We are, therefore, of the view that the ground for jurisdiction in nul-lity suits which is referred to at (v) of paragraph 43 above should also be abolished.

50.5. We are further of the view that the jurisdictional grounds in nullity suits should be the same as those recommended in relation to divorce suits.

Presumption of death and dissolution of marriage

51. Although it was once judicially observed that the - remedy of presumption of death and dissolution of marriage "is not primarily or in e tssence dissolution of mar-riage, and was not intended to be so", and that "the dissohltion was only added as a safeguard",22 we regard the remedy as so coloured by the added safeguard as to make it most akin to a decree of dissolution of marriage which, in essence, effects an altera-tion of status. In our opinion, therefore, the grounds for jurisdiction in proceedings for presumption of death and dissolution of marriage ought, basically, to be the same as those for divorce suits. However, as the former proceedings are presented on the basis that the other spouse has not been seen or heard of, and his whereabouts have been unknown, for at least seven years, it is necessary, in those cases, to modify the juris-dictional rules which are recommended for divorce suits. Hence we are of the view that the Court should be given jurisdiction in proceedings for presumption of death and dissolution of marriage in cases where the petitioner is domiciled in Jamaica or has been ordinarily resident there for at least one year preceding the commencemnt of proceedings, or is a national of Jamaica.

Orders or injunctions arising out of the matrimonial relationship

52. Jurisdictional rules regarding the recommended new proceedings for orders or injunctions for any of the purposes specified in paragraph 39.9. above may be justi-fiably more liberal, in our view, than those which apply in proceedings which deter-mine status. We feel that in these proceedings jurisdiction should be given where either party to the marriage is domiciled in, or a national of, Jamaica or where either party

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to the marriage is resident in Jamaica at the time of the commencement of proceedings, or, where the proceedings relate to a child of the family, if the child is present in Jamaica at the date of commencement of the proceedings.

Wilful neglect to maintain

53. What we have said regarding jurisdiction in the recommended new proceedings for orders or injunctions would apply equally, in our view, to proceedings for wilful neglect to maintain.

Recommendations

54. We therefore recommend that the Court be given jurisdiction: (a) In suits for divorce and nullity-

(i) where either party to the marriage is domiciled in Jamaica at the date of the institution of the suit;

(ii) where either party to the marriage is resident in Jamaica at the date of the institution of, the suit and has been ordinarily resident there for a period of not less than twelve months immediately preceding the in-stitution of the suit;

(iii) where either party to the marriage is a national of Jamaica. (b) In suits for presumption of death and dissolution of marriage-

(i) where the petitioner is domiciled in Jamaica at the date of the com-mencement of proceedings;

(ii) where the petitioner is resident in Jamaica at the date of commencement of proceedings and has been ordinarily resident there for a period of not less than twelve months immediately preceding the commencement of proceedings;

(iii) where the petitioner is a national of Jamaica. (c) In proceedings for orders or injunctions arising out of the matrimonial rela-

tionship or for wilful neglect to maintain- (i) where either party to the marriage is domiciled in Jamaica at the com-

mencement of the proceedings; (ii) where either party to the marriage is a national of Jamaica; (iii) where either party to the marriage is resident in Jamaica at the com-

mencement of the proceedings; (iv) if the proceedings relate to a child of the family, where the child is

present in Jamaica at the date of the commencement of the proceedings.

Wife's dependent domicile

55. The critical observations made by Lord Denning in the English case of Gray (orse Formosa) v. Formosa (1963) p. 259 at 267 in respect of a wife's dependent domi-cile are now well-known and have been widely quoted :

Now what is the reason for that rule, you may ask. It is the old notion that in English law a husband and wife are one : and the husband is that one. That rule has been swept away in nearly all branches of the law. At this very moment Parliament is sweeping away one of the remaining relics : it is allowing a husband and wife to sue one another in tort. The one relic which remains is the rule that a wife takes her husband's domicile; it is the last barbarous relic of a wife's servitude.

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The rule has also been criticised elsewhere as discriminatory and contrary to principles of equality of the sexes.

55.1. The question whether the wife's dependent domicile should be abolished for all purposes—as has been done, for example, in England, by section 1 of the Domicile and Matrimonial Proceedings Act 1973, in Kenya by section 8(3) and (4) of the Law of Domicile Act, 1970, and in Ontario by section 65 of the Family Reform Act, 1978—is however a far-reaching one which would have its impact on several branches of the law. It is not proposed to embark, in this Report, on such a wide study. Instead we limit ourselves here to the question whether for the purpose of jurisdiction in matri-monial causes the dependent domicile of a wife should now be abolished.

55.2. The rule is capable of leading to situations divorced from reality as in the cases where a wife is domiciled, by reason of the dependency of her domicile, in a country with which she has no real connection, or to injustice, as in those cases where a wife does not know, or is put to great difficulty and expense to ascertain where her husband is domiciled and, hence, where she is domiciled. This unreality and injustice has been recognised and to some extent mitigated by section 23 of the Divorce Act—see paragraph 42.1 above.

55.3. The total abolition of the rule in certain jurisdictions has already been men-tioned. Other jurisdictions have taken the more limited step, now under consideration, of abolishing the rule for the purposes of jurisdiction in matrimonial causes. This has been done, for example, in :

(i) Australia—see section 4(3)(b) of the Family Law Act, 1975; (ii) Bermuda—see section 3 of the Matrimonial Causes Act, 1974; (iii) Canada—see section 6(1) of the Divorce Act, 1968; (iv) Ghana—see section 32 of the Matrimonial Causes Act, 1971; and (v) New Zealand—see section 3 of the Matrimonial Proceedings Act, 1963.

It has long been the position throughout the United States of America. In the Hague Convention on the Recognition of Divorces and Legal Separations, too, dis-satisfaction with the rule of the wife's dependent domicile is also evident in Article 3 which provides that where the State in which a decree of divorce or legal separation was granted uses the concept of domicile as a test of jurisdiction in such matters, the expression 'habitual residence' which, as a jurisdictional ground is recognised by Article 2, is deemed to include domicile as the term is used in that State, but which expressly excludes from the Ambit of Article 3 the domicile of dependency of a wife.

55.4. A married woman although resident in Jamaica and intending to reside there permanently or indefinitely may not be a national of Jamaica or may not yet have satisfied the period of ordinary residence recommended as a jurisdictional ground for certain matters. In our view, therefore, the widening of the jurisdictional grounds in matrimonial causes which we have recommended does not dispense with the need for abolishing the rule of dependence of a married woman's domicile.

55.5. Provisions in the various Commonwealth statutes abolishing this rule of de-pendent domicile differ in their formulation. In Bermuda a woman's domicile is re-quired to "be determined without regard to any rule of law providing for her domicile at any time to be the same as that of her then husband". The New Zealand legislation of 1963 is more direct; it requires the domicile of a married woman to be determined

27

as if she were unmarried and (if she is a minor) as if she were adult. The approach of the Australian Family Law Act is similar to that in the New Zealand legislation. The English Act of 1973 provides as follows:

(1) Subject to subsection (2) below, the domicile of a married woman as at any time after the coming into force of this section shall, instead of being the same as her husband's by virtue only of marriage, t e ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.

(2) Where immediately before this section came into force a woman was married and then had her husband's domicile by dependence, she is to be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisi-tion or revival of another domicile either on or after the coming into force of this section.

In our view subsection (2) of this provision could, in relation to the persons to whom it relates perpetuate the state of affairs to which we wish to put an end. We prefer the more straightforward approach of the legislation of New Zealand and Australia.

55.6. We therefore recommend that, subject to our recommendations concerning married minors, the domicile of a married woman be determined as if she had never been married. The married minor's domicile

56. Section 3(2) of the Marriage Act fixes the age of 16 years as the age of capacity to contract a valid marriage. By the Law Reform (Age of Majority) Act, 1979 the age of majority was lowered from 21 to 18 years. It is therefore possible for persons to come within the category of married minors for as long a period as two years. Within that two-year period it is possible for . certain matrimonial proceedings to be brought including a nullity suit, and, having regard to our recommendation in paragraph 26.4 above, a suit for divorce. The question of the domicile of the married minor could then become vital for jurisdictional purposes in those proceedings.

56.1. Our recommendation in paragraph 55.6 without more, would mean that a female person who is a married minor would, by virtue of her minority, continue to have a de-pendent domicile, that is, a domicile dependent on that of the appropriate parent. A married minor who is a male would be in the same position. In our view the fact of marriage carries with it a status which, in itself, ought to liberate a person, whether male or female from this rule of dependency of domicile notwithstanding that person's minority. Such a statutory liberation has been effected elsewhere in the Commonwealth, for example, in :

(i) Australia, see section 4(3Xc) of the Family Law Act; (ii) Bermuda, see section 3 of the Matrimonial Causes Act, 1974; (iii) England, see section 3 of the Domicile and Matrimonial Proceedings

Act, 1973; (iv) New Zealand, see section 22 of the Guardianship Act, 1968; and (v) Ontario, see section 68(2) of the Family Law Reform Act, 1978.

We think that similar legislation should be enacted in Jamaica. 56.2. We therefore recommend that where a person has not attained the age of 18

but is married, or has at any time been married, the domicile of that person be deter-mined, for the purposes of jurisdiction in matrimonial causes, as if that person had, at the date of his or her first or only marriage, attained the age of 18 years.

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Recognition of Foreign Decrees

Existing bases of recognition of foreign divorce decrees

57. The rules which determine the extent to which the Jamaican Court recognises foreign decrees of divorce are entirely judge-made law and are the same as those prin-ciples developed by the English judges and applied by the English Courts prior to the 1st of January, 1972, the date on which the Recognition of Divorces and Legal Separa-tions Act, 1971 came into force in that jurisdiction.

57.1. On the basis then of the English decisions, and in the absence of reported Jamaican case law on the matter, it may be said that the Jamaican Courts would recognise a foreign decree of divorce in the following circumstances :

(i) where the decree was made by the competent court in the country in which both parties were domiciled at the commencement of the pro-ceedings ;23

(ii) where the decree, though made in a country in which the parties were not domiciled, would be recognised by the courts of the country of the parties' domicile ;24

(iii) under the rule in Travers v. Holley,25 in the case of a divorce obtained by a wife, if the Jamaican Courts would have had jurisdiction to grant the decree under section 22 or 23 of the Divorce Act. This is so regard-less of the basis on which the Court assumed jurisdiction;

(iv) where the decree was granted by a competent court of foreign jurisdic-tion and there was a real and substantial connection between that coun-try and the petitioner or the respondent; 26

(v) if the decree would be recognised by the courts of the country with which the petitioner had a real and substantial connection though the petitioner had no such connection with the country which granted it. 27

Existing bases of recognition of foreign nullity decrees

58. The principles governing recognition of foreign nullity decrees also depend on judge-made law. Again, in the absence of reported Jamaican authority on the point we rely on the principles developed by the English judges and which, in England, remain unaltered by statute.

58.1. A foreign decree of nullity will be recognised in Jamaica in the circumstances set out at (i) and (ii) of paragraph 57.1 above 28 and in the following circumstances also :

(i) if the parties were resident in the foreign country at the commencement of the proceedings;29 or

(ii) possibly, in the case of a decree of nullity in respect of a void marriage, if the decree was pronounced by the court of the country where the marriage was celebrated.x)

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5

Recognition of foreign decrees of presmuption of death and dissolution of marriage

59. In Dicey and Morris The Conflict of Laws 9th Edn., p. 339 the rule as to the recognition of foreign decrees of presumption of death and dissolution of marriage is guardedly stated as follows :

English Courts are not bound to accept as conclusive a decree of presumption of death made by a foreign court, even a court of the domicile, unless (perhaps) it is accompanied by a decree of dissolution of marriage. But they will probably do so in order to avoid a "limping" marriage (that is, a marriage valid in one country but not in another) if the foreign court is that of the domicile or if, mutatis inutandis, the English court would have had jurisdiction in the circumstances.

General Consideration as to Recognition

60. We regard the basic objectives of the rules concerning recognition of foreign decrees of divorce, nullity and presumption of death and dissolution of marriage as being the reduction of the incidence of "limping marriages", that is, the reduction of the risk of persons being regarded as divorced in one country but as still married ih another, and hence the reduction of artificial barriers to re-marriage after divorce. We consider, however, that it would be going too far to advocate the recognition of all foreign decrees. Instead we feel that the correct approach is to have regard to the more widely used criteria for recognition and to those criteria which may be said to involve a real connection between the parties to a marriage and the jurisdiction in which the foreign decree was obtained. It will also be our endeavour to keep the recog-nition rules uncomplicated and relatively easy to apply.

Domicile as a ground for recognition

61. It is said that there was considerable resistance to the inclusion of domicile as a head for jurisdiction in the recognition rules under the Hague Convention on the Recognition of Divorces and Legal Separations. The reasons for resistance were said to he :

(i) that there is no standard definition of domicile accepted in the States which use it and that the attainment of an agreed definition would hardly be possible given the major differences in views as to how it should be ascertained;

(ii) that as the concept is used in certain systems it requires the application of rules, such as those relating to domicile of origin and to the domicile of dependence of married women, which are disliked; and

(iii) that shorn of the rules mentioned in (ii) above, domicile was sufficiently close to the concept of "habitual residence" adopted by the Convention, as to make its introduction redundant. 31

61. We regard it as important, however, and are strongly influenced by the fact, that in common law countries domicile has for many years been the basic ground of jurisdic-tion for divorce and has been retained as a statutory ground for jurisdiction in certain countries which have put the jurisdiction tests on a statutory basis. 32 We note also a growing tendency in Commonwealth countries and elsewhere to abolish the dependency rules relating to the domicile of married women and married minors and thus to reduce the technicalities of the application of the principles governing domicile, and to increase

30

the likelihood of there being a strong connection between a person and the country of his or her domicile. It is therefore our view that domicile cannot justifiably be ignored in the formulation of rules for recognition of foreign decrees of divorce, nullity or pre-sumption of death and dissolution of marriage.

61.2. For these purposes, however, it is not enough simply to refer to domicile. Ques-tions arise as to whether the relevant domicile should be that of either or both spouses, whether it should be domicile as understood in Jamaican law or as understood in the law of the country of the forum and whether there should be additional reinforcing fac-tors where domicile is the test of recognition. We have selected and refer to, or set out below, provisions from the Hague Convention and the Australian and English legisla-tion which represent certain options which we have in this matter.

61.3. The terms of Article 2 of the Hague Convention, insofar as it deals with "habitual residence", are set out in paragraph 62.1 below. Article 3 of the Convention goes on to provide:

where [the state of the divorce] uses the concept of domicile as a test of jurisdiction in matters of divorce..., the expression "habitual residence" in Article 2 shall to deemed to include domicile as the term is used in that State. Nevertheless, the preceding paragraph shall not apply to the domicile of dependence of a wife.

The effect f)f. Articles 2 and 3 is to make domicile a sufficient test for recognition of foreign decrees of divorce where the law of the country of the forum uses that concept as a jurisdictional test in divorce matters; but here, domicile is used in the sense that that term is understood in the country of the divorce forum. Here too the domicile of either the petitioner or the respondent sufficies, save that where the relevant domicile is that of the petitioner, reinforcing factors as to a period of residence or last place of cohabitation of the spouses must be established. It is important to note also that the dependent domicile of a wife is not in itself a sufficient test.

61.4. The Family Law Act, 1975 of Australia makes this provision for recognition of a foreign decree of dissolution or annulment of marriage on the basis of domicile:

A dissolution or annulment of a marriage effected in accordance with the

law of an overseas country shall be recognised as valid in Australia where— (c) the applicant or the respondent was domiciled in the overseas coun-

try at the [date of the institution of the proceedings that resulted in the dissolution or annulment].

We emphasize three points regarding this provision. The relevant domicile is that of either the applicant or the resl:ondent. In neither case are additional reinforc-ing factors required to be established and domicile is not tied to the meaning of that concept in the law of the country in which the dissolution or annulment was effected but is understood in the Australian sense.

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61.5. Section 3 of the (English) Recognition of Divorces and Legal Separations Act provides as follows :

(1) The validity of an overseas divorce or legal separation shall be recog-nised if, at the date of the institution of the proceedings in the country in which it was obtained— (a) either spouse was habitually resident in that country;

(2) In relation to a country the law of which uses the concept of domicile as a ground of jurisdiction in matters of divorce..., subsection (1)(a) of this section shall have effect as if the reference to habitual residence included a reference to dom:cile within the meaning of that law.

The result is that under this section the English Courts will recognise a divorce decree granted by a country in which either spouse was domiciled within the meaning of the law of that country if the law of that country uses the concept of domicile as a ground of jurisdiction in divorce matters. In this the English Act fellows Articles 2 and 3 of the Hague Convention but without the additional reinforcing factors where the test is the petitioner's domicile.

61.6. The English Act of 1971 also contains another provision for recognition of foreign divorce decrees on the basis of domicile.

Section 6 provides : This Act is without prejudice to the recognition of the validity of divorce... obtained outside the British Isles—

(a) by virtue of any rule of law relating to divorces...obtained in the country of the spouses' domicile or obtained elsewhere and recog-nised as valid in that country.

This provision preserves two common law rules of recognition of foreign divorce de-crees, one being the rule based on the domicile of the spouses in the sense that domicile is understood in the English law and the other being the rule in Armitage v. Attorney-General (1906) p. 135 which is stated at (ii) of paragraph 57.1 above. The Family Law Act of Australia also preserves these two common law rules by means of the wider pro-vision in section 104 (5) which requires the recognition as valid in Australia, of any dissolution or annulment of marriage that would be recognised as valid under the com-mon law rules of private international law.

61.7. We think that domicile as understood in the Jamaican law should be retained as a basis for recognition of foreign decrees of dissolution or annulment of marriage. We also think that the common law rule in Armitage v. Attorney General should be preserved. In our view, however, in both those cases the relevant domicile should no longer be that of both spouses but of either spouse. In this we bear in mind the pos-sibility of a wife acquiring, under various systems of law, a domicile independent of that of her husband, and we depart from the provisions in section 6 of the English Act of 1971 and agree with that in section 104(3)i.c) of the Family Law Act of Australia. in the case of a decree of presumption of death and dissolution of marriage the relevant domicile would be that of the petitioner.

61.8. We wish to make it clear, though it is perhaps unnecessary to so state, that when we speak, in the preceding paragraph, of domicile as it is understood in the Ja-maican law we mean the principles of domicile with the legislative changes recom-mended in pat aEraphs 55.6 and 56.2 with respect to the domiciles of married women and married minors.

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61.9. We consider it necessary, also, to adopt, as a basis for recognition of foreign decrees, the domicile of either spouse, as the concept of domicile is understood in the law of the country of the forum, if that country uses domicile as a ground of jurisdic-tion for dissolution or nullity matters. As regards this basis of recognition we have con-sidered whether any reinforcing factors are necessary. Here we find that certain con-siderations override our desire to keep the jurisdictional tests simple. These considera-tions relate to the possibility of domicile being founded in the country on too insubstan-tial a basis. Hence, and because it is the petitioner who determines where the suit will be brought, we are in favour of the requirement that there be established also, where the test of recognition is the domicile of the petitioner, as that concept is under-stood in the law of the country of the forum, one or other of the reinforcing factors whicl -

Article 2 of the Hague Convention stipulates. See (2)(a) and (b) at paragraph 62.1 belov‘ As regards the first of those reinforcing factors, however, we prefer the terminology -ordinary residence" to "habitual residence".

Residence

62. While we do not regard mere presence in a country for the purpose of instituting proceedings for divorce, nullity or presumption of death and dissolution of marriage as a sufficient basis for recognition of a foreign decree we think that a more durable or lasting residence, a residence which establishes some real connection with the country of the forum, should suffice. The basic questions which concern us are :

(a) whose residence should it be? (b) how should that residence be described? and (c) should there be any added "reinforcing factors" where residence is the

criterion?

62.1. The Hague Convention makes the following provision in Article 2 for recog-nition of foreign divorce decrees on the basis of residence :

Such divorces...shall be recognised...if, at the date of the institution of the proceedings in the State of the divorce...— (1) the respondent had his habitual residence there; or (2) the petitioner had his habitual residence there and one of the following

further conditions was fulfilled— (a) such habitual residence had continued for not less than one year

immediately prior to the institution of proceedings; (b) the spouses last habitually resided there together. •

As regards that provision two things, in particular, may be noted. First, it speaks o) "habitual residence". A key to what is meant by that term is provided by the following draft recommendations of the Council of Europe's Sub-Committee on Fundamental Legal Concepts :

In determining whether residence is habitual, account is to be taken of the duration and the continuity of the residence as well as of other facts of a personal or professional nature which point to durable ties between a per. son and his residence.

The voluntary establishment of a residence and a person's intention to maintain it are not conditions of the existence of a residence or an habitual residence, but a person's intentions may be taken into account in determining whether he possesses a residence or the character of that residence. 33

33

Secondly, a distinction is made beween the habitual residence of the respondent and that of the petitioner. A regards the respondent, habitual residence, without more, is a basis for recogriticn whereas for recorn'ticn on the basis of the habitual residence of the petitioner additional reinforcing factors must be established.

62.2. Professor Anton's article in 18 I.C.L.Q., 620 at p. 630 throws light on the rea-sons for the distinction to which we refer. We quote his article:

The habitual residence of the respondent within the territory of the State of the d:vorce...is likely to be the [most convenient forum from the respon-dent's point of view and was admitted, therefore, with little discussion. There was more reluctance to admit of the habitual residence of the petitioner on a ground of jurisdiction. The facts that the petitioner may determine for himself where he resides and that the Convention imposes no general con-trol of the applicable law, suggested to delegates that such a head of juris-diction might favour forum-shopping. The delegates of the Scandinavian countries, however, having in mind the case of a Scandinavian woman de-serted, say, by an Italian husband, insisted upon the inclusion based on the habitual residence of the petitioner. In the result the Conference admitted the petitioner's habitual residence in a State as a ground of jurisdiction, but only wnen coupled with such "fortifying" elements as the length of the peti-tioner's residence...[and] the fact that the spouses last habitually resided to-gether in that State...

Dis ..:ouras-ement of forum-shopping appears then to have figured largely in the reasons of the Hague Convention for the additional reinforcing factors where the test of recog-nition is the petitioner's habitual residence.

62.3. The English and Scottish Law Commissions, when considering the Hague Con-vention, expressed their own commitment to the discouragement of forum-shopping. However, they saw the time of the divorce proceedings as that at which forum-shopping takes place and therefore raised the question whether the stage of recognition of the foreign decree was the appropriate one for promoting discouragement of forum-shop-1 in'. Those Commissions preferred to.emphasize the desire to avoid "limping marriage". As they put it:

Against the desirability of recognising only divorces where the parties have a real social connection with the country of the forum, there must be weighed the need to avoid situations where the parties are regarded as being married in one country and not married in another. 34

in their r: commendations for recognition on the basis of habitual residence they there-fore made no distinction between the residence of the respondent and that of the peti-tioner and required no additional reinforcing factors in either case.

62.4. The (English) Recognition of Divorces and Legal Separations Act 1971 imple-ments the joint recommendation of the English and Scottish Law Commissions in this respect in that it pros ides, so far as concerns habitual residence, as follows :

The validity of an overseas divorce...shall be recognised if, at the date of the institution of the proceedings in the country in which it was obtained— (a) either spouse was habitually resident in that country; (b) ...........

Other legislation to the same effect in section 3(1)(a) of the Recognition of Divorces and Legal Separations Act, 1977 of Bermuda.

34

62.5. The Family Law Act 1975 of Australia prefers the terminology 'ordinary resi-dent' to that of 'habitually resident' but otherwise adopts the provision of Article 2 of the Hague Convention as to recognition of Divorce decrees based on residence in that it provides in section 104(3)(a) and (b) as follows:

A dissolution or annulment of a marriage effected in accordance with the law of an overseas country shall be recognised as valid in Australia where— (a) the respondent was ordinarily resident in the overseas country at the

[date of the institution of the proceedings that resulted in the dissolu-tion or annulment]; the applicant was ordinarily resident in the overseas country at the [date of the institution of the proceedings that resulted in the dissolu-tion or annulment] and either-

(i) the ordinary residence of the applicant had continued for not less than one year immediately before the relevant date; or

(ii) the last place of cohabitation of the parties to the marriage was in that country.

62.6. The Matrimonial Causes Act 1971 of Ghana makes this provision section 36(b):

The Court shall recognise as valid a decree of divorce, nullity or presump-tion of death and dissolution of marriage, obtained by judic:al process or otherwise, which is not contrary to natural justice, and which—

(a) ........... ; or (b) is in accordance with the law of the place where both parties to the mar-

riage were ordinarily resident at the time of the action dissoh ing or annuling the marriage.

Thus, while the Ghanaian legislation requires no reinforcing fa: tors for residence as a test of recognition, it does require that the residence be that of Loth parties to the marriage.

62.7. We do not think it necessary for the purposes of recognition to require both spouses to have been resident in the country of the forum which dissolved or annulled the marriage. In our view, subject to what we say below, the residence of either spouse should suffice.

62.8 As to the necessary description of the type of residence which is to constitute the test of recognition, consistently with our earlier recommendations as to jurisdiction, and in line with the Australian legislation, we prefer the terminology of "ordinary residence" or "ordinarily resident" at the date of the institution of the proceedings which resulted in the dissolution or annulment of the marriage. We have already said something of the meaning of "ordinarily resident". However, where, as here, 'ordinary residence' is tied, not to a specific period of time but to a specific date, that of the institution of proceedings, we think some guidance should t e given as to what is intended by the use of that description. What we intend is that the residence should have some quality of durability or intended durability though not necessarily of per-manence or indefinite duration; some real connection with the country of the forum which will distinguish it from mere transient presence. We therefore consider the guide-lines as to "habitual residence", which we quoted in paragraph 62.1 a'- ove, to be equally applicable to our concept of 'ordinary residence' at the date of the institution of proceedings. Once ordinary residence is conceived of in this way it does invol.ve a

35

(b)

real social connection with the country of the forum. Consequently, we do not think it necessary to distinguish between the ordinary residence of the respondent and that of the petitioner and to require additional reinforcing factors in respect of the latter.

62.9 In our view therefore the ordinary residence of either spouse in the country of the forum at the date of the institution of the relevant procedings should be a basis for recognition of a foreign decree of divorce or annulment. In the case of a foreign decree of presumption of death and dissolution of marriage the ordinary residence of the petitioner would suffice.

Nationality

63. In considering whether, and to what extent, nationality should be used as a basis of recognition of foreign decrees regard must be had to the extent to which that concept is used outside of Jamaica to ground jurisdiction in suits for dissolution or annulment. This view was also taken by the Royal Commission on Marriage and Divorce which was established in the United Kingdom and made its Report in 1956. We quote from that Report :

We take the view that a greater measure of recognition should be given to the exercise of jurisdiction in other countries. Only in this way can a start be made towards lessening the number of "limping marriages" • (para. 812)

It must be accepted that the courts in a number of countries assume jurisdiction to grant a divorce if the husband is a national of that country, whatever his domicile may be; To refuse recognition to a divorce obtained in such circumstances is to increase the number of "limping marriage" and to cause hardship to the persons affected. To recognise such decrees is to promote a better understanding in the international sphere (para. 856).

As is emphasized in the passages quoted, failure to recognise decrees granted in the country of a spouse's nationality would only lead to an increase in the number of "limping marriages".

63.1. This is so because a large number of countries, it appears, use nationality as a ground for jurisdiction to dissolve or annul a marriage. Lord Reid made mention of this fact in Indyka v. Indyka (1969) AC 33 at pp. 64 and 68. He said:

So far as I have any knowledge of the matter the position appears to be ....... that most European countries attach more importance to nationality .......... ...In many countries jurisdiction depends on nationality, indeed one might almost say that in half the world domicile in one form or another prevails and in the other half nationality.

Lord Pearson, in the same case, at page 111, also referred to this : ...unless the nations now using nationality as their basis are willing to change it (which is not indicated), there must be in the international sphere at least two different bases of jurisdiction being used„ The duality is in that sense inevitable, and in any case it exists, and should not be ignored.

Also as is pointed out by Professor Anton in 18 I.C.L.Q. at p. 630 : The admission of nationality as a ground of jurisdiction under the Hague Convention seemed virtually a foregone conclusion, since it is the basic ground of jurisdiction in civil law countries.

36

r.

The fact then that nationality is a widely used basis for jurisdiction is, in itself, in our view, a compelling reason for recognition of foreign decrees where either party to the marriage was a national of the country of the forum, or in the case of a decree of presumption of death and dissolution of marriage, if the petitioner was a national of that country.

63.2. The case for using nationality as a jurisdictional test for recognition of foreign decrees is further strengthened by the fact of the close connection which often exists between a person and the country of which he is a national. Refrence has already been made in paragraph 49 to this connection.

Travers v. Holley

64. It will be observed that the tests for recognition of foreign decrees which we consider desirable coincide with the jurisdictional bases which we have recommended for domestic decrees. In such a situation the rule in Travers v. Holley becomes redundant.

Real and substantial connection

65. There has never been a definitive statement as to what constitutes, for the purposes of the rule in Indyka v. Indyka, a real and substantial connection between a party to a marriage and the country in which a decree of dissolution of marriage has been granted, although factors such as nationality, residence, and the last matrimonial home, have had an important part to play in the establishment of the necessary connection. The precise application of the rule in future cases remains therefore a matter of 'un-certainty. We consider such uncertainty undesirable in this area of the law and, therefore, that the test of real and substantial connection established in Indyka v. Indyka should be at olished. If the recommendations which we make in paragraph 68 below are adopted such abolition would hardly leave a gap in the law as nationality and ordinary residence would individually and in themselves constitute tests of recognition of foreign decrees.

Celebration of the marriage

66. In dealing with domestic jurisdiction we stated our reasons for recommending a departure from the rule established in Simonin v. Mallac and Ross Smith v. Ross Smith, that in cases of marriages void ab initio the celebration of a marriage in Jamaica would suffice to ground jurisdiction in nullity proceedings. For the same reasons, mutatis mutandis, we think it undesirable to recommend the adoption of a test of recognition of foreign decrees, whether divorce, nullity or presumption of death and dissolution of marriage, based simply on the celebration of the marriage in the country of the forum.

Non-judicial divorces and annulments

67. It appears now to be established that non-judicial divorces granted abroad, like judicial divorces, are capable of recognition under the common-law rules of private international law. In support of this we need only refer to the English case of Qureshi

37

v. Qureshi (1971) 1 All E. R. 324 which concerned the question of the recognition of a divorce by talaq effected under Islamic law in the country of the spouses' domicile. The nature of the talaq was explained by Sir Jocelyn Simon P in this way :

Although there were sectarian differences irrelevant to the instant case, by ancient Islamic Law a marriage between Muslims could be terminated by the husband pronouncing three times words which can be translated as "I divorce you". This is the talaq. It will be apparent that it has affinities with the bill of divorcement mentioned in the Authorised Version of the Book of Deuteronomy, the modern modification of which (the Jewish divorce by "get") has received judicial consideration.

As was pointed out however the rules relating to the talaq had been modified by statute and, in particular, by a provision in these terms :

(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of .talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife .. .

. .a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which the notice under sub-section (1) is delivered to the Chairman.

(3) Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconcilation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

67.1. The question posed in Qureshi v. Qureshi was formulated by Sir Joscelyn Simon in this way:

The issue which I have to determine under the present holding is whether There is a rule of English law which compels refusal of recognition to a divorce valid by the law of domicile, if it is not the creature of judicial act or performed in judicial presence, either generally, or if the marriage is celebrated in England, or if the purported divorce takes place in England, or both.

He answered that question in the negative, stating:

I am satisfied that there is no general rule to this effect . . . In my view .. . the fact that there has been no judicial intervention or even presence is irrelevant if the purported divorce is effective by the law of the domicile to terminate the marriage in question, and it should be recognised as such, unless the result would be offensive to the conscience of the English court.

In so holding he agreed with the following view expressed in Dicey and Morris on the Conflict of Laws, 8th Edn., pp 319, 320:

In spite of earlier diets to the contrary, it is now clear that English courts will recognise non-judicial divorces obtained by mutual agreement between the spouses or unilaterally by one party to the marriage in accordance with a religious law (e.g., a Jewish ghet or Mohammedan talak), provided the parties are domiciled in a country (e.g. Israel or Egypt the territorial laws of which permit such a method. The recognition of such divorces is perfectly consistent with the status theory of divorce and with the paramount importance of domicile in questions of status. If the cause for divorce is immaterial, so ought the method to be. It is immaterial that the religious divorce takes place in England, provided of course that the parties are not domiciled in England.

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67.2. Article 1 of the Hague Convention deals with the types of divorce decrees which will be afforded recognition under its provisions:

It states :

The present Convention shall apply to the recognition in one Contracting State of divorces . . . obtained in another Contracting State which follow judicial or other proceedings officially recognised in that State and which are legally effective there.

The background to that provision is disclosed in 18 I.C.L.Q. p. 627:

Some States, including the United Kingdom, would have preferred the Convention to apply "whatever the forms or methods of divorce provided or permitted by the granting State" on the view that the sole relevant question is whether the marriage has been effectively dissolved. Other States were unhappy about recognising divorce emanating from systems which, by failing to establish official procedures, might fail to protect a defending spouse. The compromise formula adopted certainly covers judicial, administrative and probably most religious and legislative divorces. The divorce must follow what is described as "proceedings" or a "procedure", which is or are officially recognised in the granting State.

The Hague Convention therefore follows the common law in that it recognises not only judicial but also non-judicial divorces but it expressly limits the latter category to divorces which follow proceedings officially recognised, and are legally effective, in the States in which they were obtained.

67.3. In the English 1971 Act a distinction is made between the grounds of recognition under section 3 and the common law grounds based on domicile and the rule in Armitage v. Attorney General which are preserved in section 6. Similarly a distinction is made in the Australian Family Law Act between the grounds of recognition under section 104(3) and the common law grounds of recognition preserved under section 104(5).

67.4. As regards the section 3 grounds the English Act is made applicable to overseas divorces which—

(a) have been obtained by means of judicial or other proceedings in any country outside the British Isle; and

(b) are effective under the law of that country.

With this may be compared the provision in section 104(3) of the Australian Act which afford recognition on the grounds set out in that subsection to a "dissolution or annul-ment of a marriage effected in accordance with the law of the country". The comment (may be made that the English provision appears to be the more stringent as the divorce is required to have been obtained by some sort of "proceedings" whether judicial or otherwise and must be "effective" under the law of the country in which it was obtained.

67.5. There is no express provision either in the English or the Australian Act as to the types of divorces of which the Act will apply where the grounds of recognition are the common law grounds under section 6 and section 104(5) respectively. Presumably the common law principles dealt with in paragraph 67.1 will apply in those cases.

67.6. We agree with the views reflected in the Hague Convention and in sections 3 and 104(3), respectively, of the English and Australian Acts, that the common law extension of recognition of foreign decrees of divorce to non-judicial divorces should be

39

(2)

preserved.. We consider it desirable however that express provision be made, as in the Hague Convention, stipulating that the provision for recognition of foreign non-judicial decrees of dissolution or annulment be recognised only where these three con-ditions have been satisfied :

(a) the decree must have been obtained by some form of proceedings; (b) the decree must be officially recognised in the country in which it was obtained; (c) the decree must be effective in the country in which it was obtained.

In our view these stipulations should apply whatever the basis of recognition.

68. We therefore recommend, subject to what is said in paragraphs 70 and 81 below, that the validity of a foreign decree of dissolution or annulment of marriage be recog-nised in Jamaica if-

- (1) either party to the marriage was, at the date of the institution of proceedings;

(a) domiciled in, or (b) ordinarily resident in,. or (c) a national of,

. the country in which the decree was obtained; or (2) the decree, though made in a country in which neither party to the marriage

.- was domiciled, would be recognised by the courts of the domicile of either party; or

(3)- where the country in which the decree was obtained uses domicile as a ground of jurisdiction for the dissolution or annulment of marriage,

(a) the respondent was, at the date of the institution of proceedings, domiciled in that country, in the sense that the concept of domicile is underitood in the law of that country; or

IQ)) the petitioner was, at the date of the institution of proceedings, -domiciled in that country, in the sense stated at (a) above, and one or other of the' following further conditions is satisfied-

(i) the petitioner had been ordinarily resident in that country for not less than one year immediately preceding the institution of proceedings.

(ii) the last place of cohabitation of the parties to the marriage was in that country.

An (1) and (2) above the word "domiciled" is used in the sense that it has in the Jamaican law with the legislative changes recommended in paragraphs

. 55.6 and 56.2 as to the domicile of married women and married minors.

: 69.. We recommend also, subject to what is said in paragraphs 70 and 81 below, that the validity of a foreign decree of presumption of death and dissolution of marraige be recognised in Jamaica if—

(1) the petitioner 'was, at the date of the institution of proceedings, (a) domiciled in, or (b) ordinarily resident in, or (c) a national of,

• the country in which the decree was obtained; or (2) the decree, though made in a country in which the petitioner was not domiciled,

Would . be recognised by the courts of the country of the petitioner's domicile; or

40

where the country in which the decree was obtained uses domicile as a ground of jurisdiction for a decree of presumption of death and dissolution of marriage, the petitioner was, at the date of the institution of proceedings, domiciled in that country, in the sense that the concept of domicile is understood in the law of that country, and one or other of the following further conditions is satisfied—

the petitioner had been ordinarily resident in that country for not less than one year immediately preceeding the institution of proceedings.

(ii) the last place of cohabitation of the parties to the marriage was in that country.

In relation to (1) and (2) of this paragraph we make the same observations regarding domicile as are made in paragraphe 68 in relation to (1) and (2) of that paragraph.

70. We further recommend that the validity of foreign decrees of dissolution or annul-ment of marriage or of presumption of death and dissolution of marriage be recognised in Jamaica, in accordance with paragraphs 68 and 69 above, if, and only if, the following three conditions are satisfied :

(i) the decree was obtained by some form of proceedings; (ii) the decree is officially recognised in the country in which it was obtained; (iii) the decree is effective in the law of the country in which it was obtained .

GROUNDS FOR REFUSING TO RECOGNISE FOREIGN DECREES

71. Over the years there have been established, at common law, a number of grounds on which a court may refuse to recognise a foreign decree of dissolution or annulment of marriage nothwithstanding that the decree was granted by a court recognised by the rules of private international law as a court competent to grant such a decree.

Although questions of recognition, in Jamaica, opor;pign decrees come before attorneys-at-law from time to time for advice, there is a v—Wieai of Jamaican authority on the grounds for refusal of recognition and reliance is placed on judicial authority from England and other Commonwealth countries. The cases which we cite here are English cases.

Substantial injustice

72. Pemberton v. Hughes 35 was a decision of the English Court of Appeal in which a foreign decree of divorce pronounced by a competent Court was recognised. Lord Lindley M.R., however said this :

If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with which it is competent to deal, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. Where no substantial justice according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and this extent—namely, its com-petence to entertain the sort of case which it did deal with, and its com-petence to require the defendant to appear before it. If the Court had jurisdiction in this sense and to this extent, the Courts of this Country never inquire whether the jurisdiction has been properly or improperly exercised provided always that no substantial injustice according to English notions, has been committed." 36

41

(3)

(i)

CO

12.1 in reliance on that dictum of Lord Lindley, the English Courts have repeatedly reaffirmed the principle that they have a residual discretion to refuse to recognise a foreign decree of divorce or nullity granted by a court of competent jurisdiction, if that decree offends against their notions of "substantial justice", or would, according to their notions, work "flagrant" or "intolerable" injustice or would be "fundamentally unfair", "manifestly unjust", or "offensive to the conscience of the English Court". 37

73. Contrary to Natural Justice

In Pemberton v. Hughes too, Lord Justice Vaughan Williams had said: The true principle seems to me to be that a judgment, whether in personam

or in rem, of a superior court having jurisdiction over the person, must be treated as valid till set aside either by the Court itself or by some proceedings in the nature of a writ of error, unless there has been some defect in the initiation of proceedings, or in the course of proceedings, which would make it contrary to natural justice to treat the foreign judgment as valid, as, for instance, a case where there had been not only no service of process, but no knowledge of it. 38

This dictum has been frequently cited in support of what the English Court referred to in 1957 as "an unbroken line of statements of judges of high authority that a foreign decree of divorce obtained in proceedings the course of which ran contrary to natural justice is to be treated here as a nullity." 39 Thus, failure of natural justice in the course of proceedings of a foreign court has been said to go to the root of the competence of that court in a manner similar to absence of jurisdiction over the subject matter before it.40

73.1. While there have been some judicial misgivings as to the question of defining, or achieving general consensus about the principles of natural justice in this context; 41 case law has established certain rules. Thus, where the respondent had no notice of the proceedings, the decree is prima facie one obtained by a procedure contrary to natural justice. However, exceptionally, where it is proved to be the case or where it can 1- e assumed to be the case that upon information bona fide given to it the foreign court has held that its own rules as to service or substituted service have been duly com-plied with and that it is despite that fact that no notice of the proceedings has been re-ceived by the respondent the courts will not generally regard that absence of notice as resulting in the foreign court's proceedings being contrary to natural justice. These ex-ceptional cases do not include the situation where the absence of notice of the proceed-ings has been procured by the petitioner's fraud. 42 Natural justice has also been said to involve the principle that a litigant "should be afforded an opportunity of substantially presenting his case before the court". 43 These principles have been applied in both divorce" and nullity45 suits.

74. Fraud In so far as concerns the effect of fraud on a foreign decree a distinction appears to

have been drawn between divorce and nullity suits. In nullity cases the courts have recognised as a general exception to the rule as to the binding and conclusive nature of a foreign decree of a court of competent jurisdiction, the case where that decree has been obtained by fraud.48 In divorce suits the effect of the fraud differs according to the purpose of the fraud. The courts are obliged to recognise as valid a divorce decree pronounced by a court of competent jurisdiction, as long as it subsists in the foreign country, even though that decree was procured by fraudulent evidence at the trial about the matrimonial offence. 47 The result is otherwise where the fraud leads the foreign court to assume jurisdiction over the subject matter of the suit when but for that fraud it had none. In such a case the courts will refuse to recognise the decree as valid. 48 This is so also where the petitioner has by fraud prevented the other spouse from having notice of the proceedings. 49

42.

Duress 75. It was held in 1970, in Meyer v. Meyer, 50 that the English courts will declare a

foreign decree of divorce invalid if the will of the party seeking the decree was over-bourne by a genuine and reasonably held fear caused by present and continuing danger to life, limb or liberty arising from external c:rcumstances for which that party was not responsible. "Danger", as there used, must, it was said, include danger to at least a parent or child of the party, and " danger to limb" means a serious danger to physical or mental health. 51

Public Policy 76. Recently too in Hornett v. Hornett 52 the English Court, relying on a passage from

Graveson's Conflict of Laws, 53 which cited Indyka v. Indyka 54 in support, has spoken in terms of what is contrary to public policy when considering the question of refusal to recognise a foreign divorce decree.

77. We have considered whether to leave for judicial development, unfettered by statute, those common law principles as to the grounds for refusing to recognise a foreign decree of divorce or nullity given by a court of competent jurisdiction, or whether to codify or make any statutory alterations to those pia ciples. In this we found it helpful to look, as we did, in other matters, at the Hague Convention on the Recognition of Divorces and Legal Separations and on statutes enacted in ether Com-monwealth countries. Hague Convention

78. Articles 7-10 of the Hague Convention give Contractil -,s Stat:s a discretion to refuse to recognise a foreign decree of divorce in the following circumstances :

(i) if, at the time when the decree was obtained, both the parties were nationals of States which did not provide for divorce, and of no other State. (Article 7)

(ii) if, in the light of all the circumstances, adequate steps were not tak:n to give notice of the divorce proceedings to the respondent.

(Article 8) (iii) If the respondent was not afforded a sufficient opportunity to present

his case. (Article 8) (iv) If the decree is incompatible with a previous decision determining

the matrimonial status of the spouses and that decision either was rendered in the State in which recognition is sought, or is recognised, or fulfils the conditions required for recognition, in that State.

(Article 9) (v) If recognition of--- the decree is manifestly incompatible with their

public policy ("order public") (Article 10) COMITionwealth statutes

79. The Australian Family Law Act 1975 prohibits recognition of a dissolution or annulment of marriage where :—

(a) under the common law rules recognition of its validity would be refused on the ground

(i) that a party to the marriage had been denied natural justice, or (ii) that the dissolution or annulment was obtained by fraud; or

(b) recognition would manifestly be contrary to public policy. (Section 104 (4) of the Act)

43

'‘ "11110111111

79.1. The English Recognition of Divorces and Legal Separations Act 1971, section 8 (2), with which section 8 (2) of the 1977 Bermudian Act of the same title is virtually identical, gives to the English Court a discretion to refuse to recognise a decree of divorce, which would otherwise be recognised under that Act or under rules preserved by that Act, in the following three circumstances and in those circumstances only :

if the decree was obtained by one spouse without such steps having been taken for giving notice of the proceedings to the other spouse as having regard to the nature of the proceedings and all the circum-stances should reasonably have been taken (section 8 (2) (a) (i) ); or if the decree was obtained by one spouse without the other spouse having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to the matters aforesaid, he should reasonably have been given. (Section 8 (2) (a) (ii) ) ; or

(iii) where recognition of the decree would manifestly be contrary to public policy (section 8 (2) (b) ).

79.2. In the Australian legislation then the grounds relating to natural justice and fraud are expressly related to those common law grounds though now made mandatory grounds for refusal. The grounds in Article 8 of the Hague Convention and those in section 8 (2) (b) of the English and Bermudian Act (relating to absence of notice and denial to the respondent of sufficient opportunity to take part in the proceedings) although not expressly related to, seem closely identifiable with, the common law grounds for non-recognition dealt with in paragraphs 73 and 73.1 above.

79.3. In Dicey and Morris there is what may be described as a tentative suggestion that the Convention provision and the statutory ground which relates to what is manifestly incompatible with, or contrary to, public policy could be equated with the common law ground based on offensiveness to English notions of justice :

...English judges have claimed a "residual discretion" to refuse recognition to divorces which offend their sense of justice and have occasionally exercised it. This discretion appears to have been abolished by the Act and such divorces could now be refused recognition only on the ground of public policy. The difference may be purely verbal. 55

The English and Scottish Law Commission too expressed the firm view, that Articles 8, 9 and 10—Article 10 being the public policy ground—were consistent with their existing law. 56 On the other hand there was in the English case of Kendal v. Kendal 57 some flirtation with the idea where the public policy ground was under consideration, that the English Act starts de novo. Certainly the English Court in Quazi v. Quazi 58 and in Joyce v. Joyce 59 has deliberately refrained from attempting to define or describe what is meant by "public policy" in section 8 (2) (b) of the Act. There is, of course, such guidance as may be obtained from specific cases of refusal on that ground, such as Kendall v. Kendall where the Court was deceived by one party in pronouncing the decree and would itself have invalidated the decree had it been aware of the deception, or Joyce v. Joyce where the facts were such as also to justify refusal to recognise on the ground of a denial of a sufficient opportunity to participate in the proceedings and where there would have been certain undesirable consequences to the respondent wife regard-ing maintenance and property rights were the court to recognise the decree. However, such guidance as there is, is insufficient to enable us to form any diffinitive view as fo the scope of the public policy ground or its relationship to the common law grounds.

44

80. Against that background we see no justification for altering the common law—if indeed the common law has been altered—as in the Australian, Bermudian or English legislation, or as provided in the Hague Convention. Nor do we see the need for any other amendment of those common law grounds for refusal of recognition of foreign decrees. We have also considered but have rejected the idea of codifying those common law rules, as we prefer to retain, in that sphere, the flexibility of development which the common law affords.

81. We therefore recommend that in any legislation dealing with the recognition of foreign decrees of dissolution or annulment of marriage it be expressly stated, without specifying the common law rules for non-recognition, that such provisions are not to be regarded as affecting the common law rules of private international law under which recognition of the validity of a foreign decree would be refused by the Jamaican Courts notwithstanding that the foreign court was a competent court to grant the decree. Appendix I.

Jamaica Council of Churches * The Women's Bureau

The Jamaica Bar Association The Jamaica Association of Social Workers

* Comments were received from this body only.

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5 Years 5 Years Desertion Desertion Cruelty Cruelty Separation Separation Adultery Adultery Nullity Nullity

filed granted filed granted filed granted filed granted filed granted

317 277 151 94 435 301 66 40 7 3

Conjugal Conjugal Presumption Presumption Children Custody Maintenance Summons Dissolution rights filed • rights of death of death involved under within 3

granted filed granted Married years of Women's Marriage Property Act

1 .. 1 1 990 49 105 2 4

Under 21 years at Petitioner marriage

Under 21 years Under 21 at marriage years at Respondent dissolution

Petitioner

Under 21 years Between 21- Between 21-25 Betewen 21- Between 21-25 at dissolution 25 at at marriage 25 at at dissolution of marriage marriage Respondent dissolution of marriage

Petitioner of marriage Respondent Petitioner

114 91 .. .. 245 227 28 14

AGE

Between 26- 30 years at marriage Petitioner

Between 26-30 Between 26- Between 26-30 Between 31- Between 31-35 Between 31- Between 31-35 years at 30 years at years at 35 years at years at 35 years at years at marriage dissolution dissolution of Marriage marriage dissolution dissoultion Respondent of marri- Respondent Petitioner Respondent of marri- of marriage

age Peti- age Peti- Respondent tioner tioner

114 129 64 71 72 70 76 90

Between 36- 40 years at Marriage Petitioner

Between 36-40 Between 36- Between 36-40 Between 41- Between 41-45 years at 40 years at years at 45 years at years at marriage dissolution dissolution marriage marriage Respondent of marri- of marriage Petitioner Respondent

age Peti- Respondent tioner

Between 41- 45 years at dissolution of marri- age Peti- tioner

Between 41-45 years at dissolution of marriage Respondent

26 42 81 77 19 19 115 91

Between 46- 50 years at marriage Petitioner

Between 46-50 Between 46- Between 46-50 Over 50 years Over 50 years Over 50 years Over 50 years years at 50 years at years at at marriage at marriage at dissolu- at dissolu-

marriage dissolution dissolution Petitioner Respondent tion of tion of Respondent of marriage of marriage marriage marriage

Petitioner Respondent Petitioner Respondent

2 4 59 57 5 5 114 123

Length of marriage 1-2 years

Length of marriage 3-5 years

Length of Length of Length of marriage marriage marriage 5-10 years 11-15 years 16-20 years

Length of marriage 21-25 years

Length of marriage 26-30 years

Length of marriage 31-35 years

Length of marriage 36-40 years

Length of marriage 41-45 years

3 60 134 127 99 44 30 18 10 1

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APPENDIX III S 114 of the Family Law Act (Australia)

(Para. 39.11) Injunctions

`S114 (1) ...............the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate, including an injunc-tion for the personal protection of a party to the marriage or of a child of the marriage or for the protection of the marital relationship or in relation to the property of a party to the marriage or relating to the use of occupancy of the matrimonial home.

(2) In exercising its powers under sub-section (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.

(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court thinks appropriate.

(4) If a court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with an in-junction or order under this section, that court may-

(a) order that person to pay a fine not exceeding $1,000; (b) require that person to enter into a recognizance, with or without sureties,

in such reasonable amount as the court thinks fit, that he will comply with the injunction or order, or order him to be imprisoned until he enters into such a recognizance or until the expiration of 3 months, whichever first occurs; order that person to deliver up to the court such documents as the court thinks fit; and

(d) make such other orders as the court considers necessary to enforce compliance with the injunction or order.

(5) Sub-section (4) does not prejudice the power of a court to punish a person for contempt of court.

(6) Where an act or omission referred to in sub-section (4) is an offence against any other law, the person committing the offence may be prosecuted and convicted under that law, but nothing in this section renders any person liable to be punished twice in respect of the same offence.

APPENDIX IV 1. Santos v. Santos (1972) 2 All E.R. 246. 2. Main v. Main (1949) 78 CLR 636 at 642. 3. Pavey v. Pavey-Australian Law Journal Aug. 76 Vol. 50 Page 417-418. 4. Australian Law Journal Aug. 76 Vol. 50 Page 417. 5. In the Nullity of Marriage Act 1971 (UK) a marriage is voidable for lack of

consent. 6. This remedy was abolished in the U.K. by section 20 of the Matrimonial Pro-

ceedings and Property Act 1970.

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7. See e.g. S.23(i) of the Divorce Act which makes reference to domicile as a basis for jurisdiction.

8. See De Reneville v. De Reneville (1948) p. 100. 9. Ross-Smith v. Ross-Smith (1962) 2 W.L.R. 388, at 416 per Lord Morris of

Borth-y-gest. 10. Ramsay-Fairfax v. Ramsay-Fairfax (1956) p. 115; Ross-Smith v. Ross-Smith,

Supra, at item 9. 11. Jurisdiction on this basis is founded on the practice of the Ecclesiastical Courts.

Ramsay-Fairfax v. Ramsay-Fairfax, supra, 132. See also s. 6 of the Divorce Act. 12. Simonin v. Mallac (1860) 2 Sw. & Tr. 67; In Ross-Smith v. Ross-Smith, supra,

the H.L. was equally divided on whether celebration of the marriage in England suffices if the marriage was void; but held it did not if the marriage was voidable.

13. See s. 39(1) of the Divorce Act. 14. Woodward v. Woodward (1962) p. 299; Rusby (1950) W.N. 349. 15. See Graham v. Graham (1923) p. 31; Matalon v. Matalon (1952) 1 All E.R.

1025. 16. Section 39(3) (c) of the Family Law Act 1975. 17. Section 2(2) (b) of the Matrimonial Causes Act 1974. 18. Section 5(2) (b) of the Domicile and Matrimonial Proceedings Act 1973. 19. Other countries which have adopted this rule include Australia, Bermuda,

England. 20. 9th Ed., p. 308. 21. Ibid., p. 351. 22. Wall v. Wall (1950) p. 112, 125 per Pearce, J. 23. Le Mesurier v. Le Mesurier (1895) A.C. 517. 24. Armitage v. A.G. (1906) p. 135. 25. (1953) p. 246. 26. Indyka v. Indyka (1967) 2 All E.R. 689; Mayfield v. Mayfield (1969) p. 119. 27. Mather v. Mahoney (1968) 1 W.L.R. 1773; Messina v. Smith (1971) p. 322. 28. Von. Lorang v. Administrator of Austrian Property (1927) A.C. 641; Abate v.

Abate (1961) p. 29. 29. Mitford v. Mitford (1923) p. 130; Corbett v. Corbett (1957) 1 W.L.R. 486;

Merker v. Merker (1963) p. 283. 30. See Dicey & Morris, Conflict of Laws, 9th Ed., 368-9; and cases there cited. 31. (1969) 18 I.C.L.Q., 631. 32. E.g. Australia : Family Law Act 1975, section 39(3) (b); Bermuda : The Matri-

monial Causes Act 1974, section 2(2) (a) England : Domicile and Matrimonial Proceedings Act 1973, section 5(2) (a); Ghana : Matrimonial Causes Act, 1971, section 31 (b).

33. See (1969) 18 I.C.L.Q., 620 at 629, note 24. 34. Law Corn. No. 34 and Scot. Law Corn. No. 16 Cmnd. 4542. pp. 12 and 13, para.

29. 35. (1899) 1 Ch. 781. 36. Ibid., 790.

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(c)

37. See e.g. Mitford v. Mitford (1923) p. 130, 137; Igra v. Igra (1951) P. 404, 410; Macalpine v. Macalpine (1958) p. 35, 42. Gray v. Formosa (1963) p. 259, 269, 270-271; Merker v. Merker (1963) P. 283, 297-298; Lepre (1965) P. 52, 60, 65; Middleton v. Middleton (1967) p. 62, 69, 74; Quereshi v. Quereshi (1971) 1 All E.R. 325, 343.

38. (1899) 1 Ch. 781, 796. 39. Macalpine supra, at p. 43, per Sachs, J. See also cases there cited. 40. Ibid, 44. 41. See e.g. Jacobson v. Frachon (1927) 44 T.L.R. 103 cited in Macalpine, supra, at

p. 44. 42. Macalpine supra, at p. 45. See also Meyer v. Meyer (1971) 1 All E.R. 378, 390. 43. Jacobson v. Frachon, supra, cited in Macalpine, supra, at p. 44. 44. See e.g. Igra, supra; Arnold v. Arnold (1957) p. 237; Mac-alpine, supra; Wood

v. Wood (1957) p. 254; Middleton, supra (1967) p. 62. 45. See e.g. Mitford, supra, at p. 137; Merker supra; Lepre, supra. 46. Salvesen or Von Lorang v. Administrator of Austrian Property (1927) A.C.

641; Merker, supra, at p. 296; Lepre, supra. 47. Bater v. Bater (1906) p. 209; Macalpine, supra, at p. 42; Middleton; supra, at p.

69; Meyer v. Meyer (1971) 1 All E.R. 378, 387. -48. Bonaparte v. Bonarparte (1892) p. 402; Macalpine supra, at p. 42. 49. Macalpine, supra, at pp. 41 and 46. 50. (1971) 1 All E.R. 378. 51. Ibid, 385. 52. (1971) 1 All E.R. 98. 53. 6th Edn., pp. 327-328. 54. (1967) 2 All E.R. 689. 55. Conflict of Laws, 9th Edn., p. 326. 56. Law Corn. No. 34 & Scot. Law Corn. No. 16, para. 11. 57. (1977) 3 All E.R. 471, 474. 58. (1978) 8 Family Law 203. 59. (1979) 2 All E.R. 156, 171.

SUMMARY OF RECOMMENDATIONS We recommend :

1. That the existing grounds for divorce be abolished and one ground viz : the irretrievable breakdown of the marriage be substituted-paras. 15-17.

2. That the court be empowered to grant a decree of dissolution of marriage on the ground of irretrievable breakdown, evidenced by a continuous period of 12 months separation or two aggregated periods broken by one period of resumption of cohabitation not exceeding three months immediately preceding the presentation of the petition for disso-lution of marriage if the court is satisfied that there is no likelihood of resumption of cohabitation-para. 18-24.

3. That the type of separation necessary, for the purposes of our proposal, be that expressed by the English Court in Santos v. Santos and the Australian Full Court in Pavey v. Pavey-paras. 24.1-24.10.

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4. That a provision similar to section 49 (2) of the Australian Family Law Act be included in the legislation proposed-para. 24.11-24.13.

5. That if the "no fault' theory is accepted but it is felt that one year's separation is not a true test, then we propose in the alternative that the irretrievable breakdown of marriage should be evidenced by :

(a) two years separation with the consent of the respondent; or (b) three years separation without the necessity of consent by the

respondent-para. 25. 6. That the court be prohibited from hearing a petition for divorce if

a period of less than 2 years has elapsed since the date of the marriage, but that exceptionally, the court be given a discretion to hear the proceedings if it is satisfied that :

(a) there are special circumstances by reason of which the hearing should proceed; and

(b) that the parties have considered reconciliation with the assist-ance of a marriage counsellor-paras. 26-26.4.

7. That as regards the making absolute of decrees of dissolution or nullity of marriage, the provision in section 41 of the Divorce Act (J) be retained but amended to refer to relevant children under 18 years-paras. 28-28.1.

8. That Family and Marriage Counsellors charged with specific functions be assigned to the Supreme Court-paras. 28-29.2.

9. That the absolute bars to divorce be abolished-paras. 30-31.3. 10. That the discretionary bars to divorce be abolished-paras. 32-32.7. 11. That the remedy of a decree of presumption of death and dissolution

of marriage be retained-paras. 33-33.2. 12 That, subject to what is said in paragraph 13 below, the category of

voidable marriages be abolished and that a decree of nullity be granted only on those grounds on which such a decree may now be granted in respect of a void marriage-paras. 34-34.11.

13. That the law be amended tc make it clear that a marriage is void where there has been an absence of consent and that this provision be limited to marriages celebrated after the coming into force of the legislation recommended-para. 34-18.

14. That the remedy of restitution of conjugal rights be abolished-para. 36. 15. That the petitions for damages for adultery be abolished-paras. 38-38.3. 16. That the remedy of judicial separation be abolished-paras. 39-39.11. 17. That the Supreme Court be given jurisdiction :

(a) In suits for divorce and nullity : (i) where either party to the marriage is domiciled in Ja-

maica at the date of the institution of the suit; (paras. 47-47.1).

(ii) where either party to the marriage is resident in Ja-maica at the date of the institution of the suit and has been ordinarily resident there for a period of not less than twelve months immediately preceding the in-stitution of the suit; (paras. 48-48.4).

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(iii) where either party to the marriage is a national of Jamaica. (para. 49).

(In relation to suits for nullity—paras. 50.2-50.5). (b) In suits for presumption of death and dissolution of marriage :

(i) where the petitioner is domiciled in Jamaica at the date of the commencement of proceedings;

(ii) where the petitioner is resident in Jamaica at the date of commencement of proceedings and has been or-dinarily resident there for a period of not less than twelve months immediately preceding the commence-of proceedings;

(iii) where the petitioner is a national of Jamaica. (para. 51). (c) In proceedings for orders or injunctions arising out of the

matrimonial relationship or for wilful neglect to maintain- (i) where either party to the marriage is domiciled in Ja-

maica at the commencement of the proceedings; (ii) where either party to the marriage is a national of

Jamaica; (iii) where either party to the marriage is resident in Ja-

maica at the commencement of the proceedings; (iv) if the proceedings relate to a child of the family, where

the child is present in Jamaica at the date of the com-mencement of the proceedings. (para. 52) paras. 40-54.

18. That subject to paragraph 19 below that the domicile of a married woman be determined as if she had never been married. (paras. 55-55.6).

19. That where a person has not attained the 'age of 18 years but is married, or has at any time been married, then his/her domicile should be de-termined for the purpose of jurisdiction in matrimonial causes as if he/she had, at the date of his/her first or only marriage, attained the age of 18 years. (paras. 56-56.2).

20. That as a basis for recognition of foreign decrees, the domicile of either spouse be adopted if the law of the country of the forum uses domicile as a ground of jurisdiction for dissolution or nullity matters. (paras. 57-61.9 also paras. 68-70).

21. Subject to what is said in paragraphs 23 and 24 below, that the validity of a foreign decree of dissolution or annulment of marriage be recog-nised in Jamaica if—

(1) either party to the marriage was, at the date of the institution of proceedings,

(a) domiciled in, or (b) ordinarily resident in, or (c) a national of,

the country in which the decree was obtained; or (2) the decree, though made in a country in which neither party

to the marriage was domiciled, would be recognised by the courts of the domicile of either party; or

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(3) the country in which the decree was obtained uses as a ground of jurisdiction for the dissolution or

wdohmeriecile j annulment of marriage,

(a) the respondent was, at the date of the institution of proceedings, domiciled in that country, in the sense that the concept of domicile is understood in the law of that country; or

(b) the petitioner was, at the date of the institution of proceedings, domiciled in that country, in the sense stated at (a) above, and one or other of the following further conditions is satisfied-

(i) the petitioner had been ordinarily resident in that country for not less than one year immediately preceding the institution of pro-ceedings.

(ii) the last place of cohabitation of the parties of the marriage was in that country.

In (1) and (2) above the word "domiciled" is used in the sense that it is in the Jamaican law with the legislative changes recommended in paragraphs 55.6 and 56.2 as to the domicile of married women and married minors. (paragraph 68).

22. Subject to what is said in paragraphs 23 and 24 below, that the validity of a foreign decree of presumption of death and dissolution of marriage be recognised in Jamaica if—

(1) the petitioner was, at the date of the institution of proceedings, (a) domiciled in, or (b) ordinarily resident in, or (c) a national of,

the country in which the decree was obtained; or (2) the decree, though made in a country in which the petitioner

was not domiciled, would be recognised by the courts of the country of the petitioner's domicile; or where the country in which the decree was obtained uses domi- (3) cile as a ground of jurisdiction for a decree of presumption of death and dissolution of marriage, the petitioner was, at the date of the institution of the proceedings, domiciled in that country, in the sense that the concept of domicile is under-stood in the law of that country, and one or other of the following further conditions is satisfied-

(i) the petitioner had been ordinarily resident in that country for not less than one year immediately preceding the institution of proceedings;

(ii) the last place of cohabitation of the parties to the marriage was in that country.

In relation to (1) and (2) of this paragraph we make the same ob-servations regarding domicile as are made in paragraph 21 in relation to (1) and (2) of that paragraph.

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23. That the validity of foreign decrees of dissolution o• marriage or of presumption of death and dissolutio ►

recognised in Jamaica, in accordance with paragraph Awe, if, and only if, the following three conditions are satisfit,

(i) the decree was obtained by some form of proceedings; (ii) the decree is officially recognised in the country in which it was

obtained; (iii) the decree is effective in the law of the country in which it was

obtained. (para. 70).

24. That in any legislation dealing with the recognition of foreign decrees of dissolution or annulment of marriage it be expressly stated (without stating the common law rules for recognition) that such provisions are not to be regarded as affecting the common law rules of private inter-national law under which recognition of the validity of a foreign decree would be refused by the Jamaican courts notwithstanding that the foreign court was a competent court to grant the decree. (paras. 71-81).

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