Bailey (Keisha La-Georgia Watson) v Florizel Al Bailey

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 11 January 2008
• Judgment citation (vLex): [2008] 1 JJC 1101
• Docket Number: CLAIM NO. M 1029 OF 2007
• Court: Supreme Court (Jamaica)
• Date: 11 January 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN FAMILY DIVISION

CLAIM NO. M 1029 OF 2007

IN CHAMBERS

BETWEEN

KEISHA LA-GEORGIA WATSON BAILEY

PETITIONER

AND

FLORIZIEL AL BAILEY

RESPONDENT

Divorce — Application for Decree Nisi — Application being considered on paper — Arrangements for children of the marriage not acceptable to judge — Whether application for Decree Nisi not to be granted as a result — Rule 76.12 (4) of the Civil Procedure Rules

MATRIMONIAL CAUSES - Decree Nisi - Application - Arrangements for children not acceptable - Whether application affected as a result

BROOKS, J

1 The introduction in September 2006, of new matrimonial causes rules as a part of the Civil Procedure Rules (CPR), has resulted in a number of changes in the process of considering grants of decrees for the dissolution of marriage. Significant teething pains have attended the changes.

2 One major change brought about by the new rules is that applications for decrees nisi may now be considered on paper by a judge, without the need for a hearing. The result is that there is, at the time of consideration, no witness readily available to clarify or expand on the affidavit evidence. Where in such applications, there are relevant children to be considered, rule 76. 12 (4) of the CPR requires the judge to issue a certificate approving the arrangements existing for the care and upbringing of those children.

3 What however, should be the situation where the judge is satisfied that the marriage has broken down but does not consider that the evidence in respect of the arrangements for the children is sufficient or satisfactory? Is the application for the decree nisi to be refused or deferred pending the correction of the difficulty with the evidence concerning the arrangements, or may, as occurred under the previous rules, the decree nisi be granted but the certificate withheld?

4 Rule 76.12 (4) states:

"(4) Where the decree nisi is being granted the judge must:

• (a) certify that, having regard to the evidence on oath of the applicant, the arrangements for the maintenance, care and upbringing of any relevant children are satisfactory or are the best that may be devised in the circumstances; and

• (b) make such orders as to the custody, care maintenance and upbringing of any relevant children as, in all the circumstances, may seem fit;" (Emphasis supplied)

5 I have emphasised that the rule requires the judge to do two things; namely, to certify the arrangements and to make orders. The precondition assumed by the rule is that the judge is satisfied that the requirements of the Matrimonial Causes Act ("the MCA"), concerning the grant of a decree nisi , have been met. Since the MCA does not mention the need for satisfaction of arrangements concerning children at the stage of the decree nisi , the question which arises from a reading of rule 76.12 (4) is whether its requirements improperly exceed the requirements set out in the provisions of the MCA.

6 Section 27(1) of the MCA stipulates...