Error addressed
Government has moved to correct an error in the law where divorces granted by the Master of the High Court were invalid, which meant that divorcees who remarried were committing bigamy.
Attorney General and Minister of Legal Affairs, Dale Marshall explained that under the old rules it was possible for the Master of the Court to grant uncontested divorces, but he explained that with the new rules that was no longer permitted, however he said the practice continued. He was speaking in the House of Assembly as he piloted the debate on the Family Law (Miscellaneous Provisions) Bill and the Family Law (Dissolution of Marriages) (Validation and Indemnification) Bill.
“A very convenient practice having commenced, it just continued unabated and therefore parties would go before the Master in an uncontested divorce and seek the necessary orders under Section 27 and under Section 42. Problem is Sir, the Master had no jurisdiction to make those orders under the new rules. And therefore Mr. Speaker parties would have been divorced by order of the Master of the Supreme Court at a time when the Master of the Supreme Court did not have the lawful authority to do so,” he said.
AG Marshall said in essence an individual who was divorced in a situation where the Master exercised the discretion that he or she did not have, meant that that divorce was “void ab initio”, and that in fact the parties were still married.
“Problem is of course that the individuals acting in good faith on the strength of an order from the Master saying you are now divorced, they would have gone on and remarried. But Sir we all know that if you are not divorced, by engaging in a second marriage to another party you are now committing a grievous criminal offence called bigamy. I regret to say Sir that if we do not pass this law today, and it difficult Sir to begin to find out the numbers of people who are potentially affected by this, but any of them who would have gone on to get married Sir, in a situation where their divorce is in itself not lawful, then that person is unwittingly committing a criminal offence,” he stated.
The Minister of Legal Affairs said this matter should have long been addressed and therefore, he said, the amendment being provided would not only validate the divorces granted by the Master of the Court, but any future marriages and preserve arrangement entered into by the individuals after the divorce.
“Through error a good practice developed and that practice has some value even when we changed the law, because everybody knows that the judicial system in Barbados is overburdened by cases and it really became convenient for persons to get divorces pushed through the system in this way,” he said.
Given that reality, he said the decision was taken to formally extend the powers to the Master of the Court to grant uncontested divorces, which he said would help to take some pressure off the court system.
“Having cases decided swiftly will not just depend on bringing on additional judges and I think Sir that is an important element that needs to be stressed. You can bring on more judges and we have done so, but unless we put other arrangements in place to be able to help the judges themselves do their work in a more efficient and effective way, then we really would not have made the kind of strides that we need to in order to wrestle the problem to the ground,” he stated.
The Attorney General made the point while contending that diverting part of a divorce application to the Master, allows an additional set of judicial individuals to help make decisions and move things more quickly through the courts. Marshall added that he has petitioned Prime Minister Mia Mottley for a second Master to be employed, and he indicated, she is prepared subject to financing, to accede to that request.
“Having two family law judges doing all of the divorces in Barbados is itself a challenge because we have a large number of divorce applications and family law applications, because divorce is not the only thing that judges deal with. But we have a lot of applications that would be heard by the family court, but at that point where you only have two judges, the pipeline becomes very narrow and it is therefore a prudent thing to allow the Master to take some of this pressure off of the court Sir,” he added. (JRT)