Donaldson, Joseph Samuel v Esmie Victoria Donaldson

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Brooks, J.
• Judgment Date: 12 November 2004
• Judgment citation (vLex): [2004] 11 JJC 1201
• Docket Number: CLAIM NO. F D 1364/2004
• Date: 12 November 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN FAMILY DIVISION

CLAIM NO. F D 1364/2004

BETWEEN

JOSEPH SAMUEL DONALDSON

PETITIONER

AND

ESMIE VICTORIA DONALDSON

RESPONDENT

MATRIMONIAL CAUSES - Divorce petition - Whether petition for divorce was premature - Matrimonial Causes Act, s. 8(1)

Brooks, J

1 Mr. Joseph Donaldson is in a hurry to be divorced from his wife. He has been married for less than two years but has been separated from his wife, according to him, for approximately seventeen months to date. He filed a Petition for Divorce in July 2004 and, quite predictably, the Deputy Registrar requested his attorneys-at-law to withdraw it because it was premature.

2 Miss Brown submits that the Deputy Registrar in making the request has misinterpreted the provisions of Section 8(1) of the Matrimonial Causes Act. She has applied on Mr. Donaldson's behalf for the court to direct the Registrar to accept the Petition and to issue a notice to Mrs. Donaldson to appear to the said Petition.

3 The substance of the present application turns on the meaning of the word 'presented' as used in that Section.

4 The relevant subsection of Section 8 states as follows:

"8. (1) No petition for a decree of dissolution of marriage shall be presented, without the leave of the Court, unless at the date of the presentation of the petition two years have passed since the date of the marriage."

5 The Applicant's submissions

6 Miss Brown's submissions on behalf of Mr. Donaldson may be conveniently summarized as follows:

• 1. A petition for divorce is 'presented' to the court by the petitioner giving oral evidence in support of the petition and seeking that the remedy claimed in the petition be pronounced by way of a decree nisi and for further orders.

• 2. Section 8(1) refers to a restriction as to the time of presentation of a petition not a restriction as to the time of filing.

• 3. A petition may therefore, without prior leave, be properly filed in the registry, a notice to appear issued and service of the petition and notice effected on the respondent before the expiry of two years from the date of the marriage.

• 4. The Registrar may not however, set a date for the hearing of the petition before the expiry of the two years. Three options become open to the Registrar at the stage, and only at the stage where the petitioner applies for a certificate that the pleadings are in order and that the petition be set down for hearing. These are as follows:

  • (a) to set the petition for hearing on a date subsequent to the expiry of the two years,

  • (b) to wait until after the expiry of the two years before setting the matter down for hearing, or

  • (c) to indicate to the petitioner that in the absence of grant of leave by the court to present the...