Wilshire, Natalie Gaye Elizabet v Wayne Anthony Wilshire

JurisdictionJamaica
CourtSupreme Court (Jamaica)
Judge JONES, J.
Judgment Date29 June 2004
Judgment citation (vLex)[2004] 6 JJC 2902
Date29 June 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. W079/98
BETWEEN
NATALIE GAYE ELIZABETH WILSHIRE
CLAIMANT
AND
WAYNE ANTHONY WILSHIRE
DEFENDANT

MATRIMONIAL CAUSES - Decree Nisi obtained by claimant - Decree Absolute obtained by husband - Failure to serve notice of application on plaintiff/claimant - Whether Decree Absolute voidable and can be set aside

JONES, J
1

When Natalie Gaye Wilshire obtained a Decree Nisi in dissolution of her marriage to Wayne Anthony Wilshire on December 9, 1998, little did she know that five years later the proceedings initiated by her would take a nasty and confrontational turn. On June 6, 2003, she filed an action in this court for a declaration that the Decree Absolute obtained by her husband Wayne Wilshire on December 13, 2002, be declared a nullity. She claimed that the Decree Absolute was granted by the court, without first giving her an opportunity to be heard, and in breach of the Matrimonial Causes Rules. In particular, she claimed that:

  • (a) She was not served with notice of the application;

  • (b) There was no indication as to whether the judge who granted the Decree Absolute certified that he was satisfied as to the arrangements for the care and upbringing of the relevant children of the marriage, in accordance with rule 38(7) of the Matrimonial Causes Rules.

  • (c) There was no affidavit setting out the arrangements proposed for the care and upbringing of the relevant children as required by Rule 38(8).

  • (d) There was no Affidavit of Delay filed by the Respondent in accordance with Rule 38(2).

2

The facts (which are not disputed) were that Mrs. Wilshire filed an application in the Supreme Court of Jamaica for a Decree Nisi to dissolve her marriage. The application was heard, and Decree Nisi granted on December 11, 1998. Subsequently, her husband Wayne Wilshire applied for a Decree Absolute on October 15, 2002, which was granted on December 13, 2002. The Matrimonial Causes Rules provide that either party to a marriage can apply to make the Decree Nisi absolute. Sec. 38 (1) provides that:

"An application by either party to a marriage to make absolute a decree nisi shall be made to the court by filing a notice in writing setting forth that application is made for such a decree absolute, and a time shall be appointed for such decree to be pronounced in open court, being not earlier than six (6) weeks from the date of the decree nisi, unless the court shall by general or special order fix some earlier time."

3

Mr. Wilshire's attorney-at-law, Mr. Gordon Steer, served the notice of application for the Decree Absolute on Miss Leila E. Parker, the former attorney on record for Mrs. Natalie Wilshire.

4

It should be noted that on March 4, 1999, Mrs. Margarette Macaulay filed a Notice of Change of Attorney in the Supreme Court indicating that she was now the attorney on record for Mrs. Natalie Wilshire. There was no documentary evidence that the Notice was served on Mr. Wilshire's attorneys. However, in an affidavit filed in this matter, Mrs. Margarette Macaulay said that a Notice of Change of Attorney was served on the office of Chambers Bunny & Steer on March 4, 1999. Mrs. Macaulay contends that Mr. Steer knew that she was the attorney on record in the matter. On the other hand, Mr. Steer would be hard pressed to deny that he had no knowledge that Miss Leila Parker had ceased to act as Mrs. Wilshire's attorney. The evidence is that on several occasions - regarding related ancillary applications - he acknowledged the...

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