DEAR MRS MACAULAY,
I migrated to the United States with my children. My husband is in Jamaica. I secretly found out that he has been living a double life. He got married last year, less than a year since I left, without my knowledge or even filing for a divorce. It's like he wants to have his cake and pie all together. I am confused. What are my next steps?
By your comment about him having his cake and pie all together, I conclude that your marriage had not broken down irretrievably when you left, but that this occurred after you discovered his secret double life, and definitely by his illegal act of entering into another marriage when he knew that you were alive but took no steps to obtain a divorce. In any event, he could not, in law, obtain a divorce from you, since you had not even left the family home for the required statutory period of living separate and apart after the breakdown for a continuous period of not less than 12 months immediately before filing the divorce petition.
You have asked what your next steps should be. Well, if the facts that you discovered, that he did indeed go through a ceremony of marriage less than a year after your departure are so, such a marriage would be, and is, void in fact and law. The Matrimonial Causes Act in section 4 makes this quite clear — it provides that decrees for nullity of marriage may be pronounced by the Supreme Court on the ground that the marriage is void on certain grounds. The first ground is when one of the parties to the marriage had a wife or husband living at the time of the marriage. This is clearly what you say your situation is, in that your husband knows that you are alive and you had only emigrated a few months before he proceeded to marry someone else.
The section also makes clear that nothing in section 4 must be interpreted as validating any marriage which is void in law, even when a decree of nullity has not been granted. In other words, once someone does what you say your husband has done, his second marriage is void and cannot be made legal.
The first thing I would advise you to do is to get someone to apply to the Registrar General's Department for a certified copy of the marriage certificate of his “new” marriage. I assume that you know the date it happened and the name of the woman. Give them all these facts and have them obtain one or two certified copies of it for you. You need these to make the actions you can take easier to move forward.
What he did, if indeed he has, is an illegal act. It is an offence spelled out in the Offences Against the Person Act. Section 71 of the Act states that anyone who is married, and while married, marries another person during the lifetime of the former husband or wife, even if the second marriage took place here in Jamaica or somewhere else, is guilty of a felony. It states further that, upon being convicted, the person shall be sentenced to be imprisoned for a term of up to four years, with or without hard labour, and he can be tried in any parish in which he is caught. You may be called as a witness in his trial whether he consents or not to you, his wife, giving evidence.
It is my view that you may apply for his second marriage to be declared a nullity for the reasons that you are his wife, that you are alive, that your husband knows that you are alive, but despite this, he has entered into another marriage without your marriage to him having been dissolved and in fact, that could not have been done in the period of a few months (less than a year) after you emigrated with your children.
You see, the section in the Act merely says “decrees of nullity may be pronounced by the court on the ground that the marriage is void on any of the following grounds...”
So it is for you to decide to act. You should obtain the certified copies I suggested or retain a lawyer at this beginning stage to act for you. The lawyer would then apply for and obtain the certified copies of the marriage certificate of his alleged second marriage. You can and should take both steps — that is, make the criminal complaint against him once you have the certificate, and then have the lawyer prepare your application for the decree of nullity to be pronounced by the court. By taking both courses you can have the entire mess cleared up once and for all.
You should also be clear about this — even if your husband and the woman live together for a period of five years, they cannot claim to be cohabiting as a common-law couple, because your husband, without a decree dissolving his marriage with you before he entered into another marriage or started cohabiting with the woman, cannot claim that they are spouses in any way or form.
The law is clear and it is for you to act on the situation your husband has placed you in. He will certainly not do anything himself now to end your marriage, as he will be opening himself up to being charged for his criminal act. You must act on your behalf and for your children.
So I hope I have clarified the position for you. Remember, you can pursue these actions even though you are in the USA. All courts here can and do cases virtually.
All best wishes.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.