Readers often ask what options are open to them when they discover that a divorce decree has been granted, when no court documents had been served. The person who has not been served may choose to overlook that fact and accept the divorce decree. However, in many cases, those persons choose to make applications to set aside the divorce decrees on the basis that failure to give notice to the other party renders the process void.

In some cases, a complaint is made by one party stating that although the divorce petition had been served, there was no notification that an application had been made for the final divorce decree. The question is whether, in those circumstances, the final divorce decree would be void.

Remember, there are two orders which must be obtained before divorce proceedings can come to an end. First, the decree nisi must be granted and then, at least six weeks later, an application must be made for the decree absolute.

In the first place, the petition for dissolution of marriage must be served on the respondent. The respondent may then decide whether or not to acknowledge service. If no acknowledgement of service is filed, the petitioner may proceed with the matter without serving notice of any further documents on the respondent, except for the decree nisi and the decree absolute.

Mullity

Where the respondent is served and then files an acknowledgement of service, but has no intention of defending the claim, the petitioner is still required to serve the applications for decree nisi and decree absolute on the respondent. In light of the Supreme Court judgment in the case of Boothe v Boothe, this omission could cause both decrees to be rendered void.

In that case, Mr Boothe obtained a decree absolute in December 2004 and even went on to re-marry. However, later that year, Mrs Boothe made an application to the court to set aside the decree absolute as being a nullity on the ground that she had entered an appearance when the petition was served on her, but was never served with an application by Mr Boothe to make the decree nisi absolute.

The judge in that case reviewed the Matrimonial Causes Rules and found that the failure by Mr Boothe to serve the application for decree absolute on his former wife caused the decree absolute to be void. The judge said that this also meant that his subsequent marriage was also void.

Although the rules governing divorce proceedings have changed since then, it is likely that the result would not have been different. This is because the current rules state that applications for all court orders in divorce proceedings must be served on the respondent.

Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send questions to: lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.