Common-law husband wants his share of my property

Margarette May Macaulay

Monday, September 09, 2019

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Dear Mrs Macaulay,
I have been in a committed relationship with an abusive man for almost six years now. We have two children together — one is almost 13 and the other is almost five. He was absent from mine and our first child's life for the first seven years. Then I bought a house and he used to visit, then he took up residence. We have been living together since — about five years. For years he has been talking about the notion of common-law relations and what the law says he is entitled to. Now I am fed up and I can't take the physical and verbal abuse anymore, and I want to take steps towards getting him out. He constantly reminds me of the age of our daughter, and says he is not leaving because he helped me to build the house (I have done an addition to the studio). He wants to fight me for the house on the basis of us being in a common-law union.

He was not working but he managed to give me money monthly, most times, throughout the union, then he got a full-time job last October. Does he have any rights to my house? I have developed the courage to leave him and I want to go to the courts now.

My dear, what a sad and destructive life you caused for both you and your children! You should never have allowed the father of your children to unilaterally decide to move into your house and you did nothing, and so impliedly allowed him to do so. I do not know if he was abusive to you before he did so, and if he was, it is unfortunate that you did not or you were not able to seek help to keep him out and just continue with his “visits”. You see, the fact that you have suffered both physical and verbal abuse from him with the children in the house means that they have also been victims of his abuse.

That environment was a harmful one for you and for your children to grow up in as the boy was being exposed to a man abusing a woman and witnessing the fact that nothing was done to the man for his wrong and illegal behaviour. Then your daughter was being taught that it was alright for a woman to be abused physically and verbally by her male partner. The fact that he kept reminding you of her age was and is part of his abusive manipulation of you in order to continue and ensure his control of you. Thank goodness you are now strong enough to throw off his yoke.

It is therefore very hopeful that you have decided that you have had enough and are prepared to act. You must arrange for therapy/counselling for you and your children. He must, also, but that is for him and the court, if and when you (and you should) make applications both on your own behalf and that of your children for orders of protection and occupation under the Domestic Violence Act. You should have done this before, but it is not too late.

You should not hesitate to go to the Family Court which serves the parish in which you live and tell the intake officer that you wish to apply for an order of protection to keep this man far away from you and to make sure that he does not call or follow you or harass, watch or beset you; and also for an occupation order to put him out of your house. Remember that even if the house belonged to him he can be ordered out for being violent to you, and he still would have to continue to pay support for the children, the home, and for you, if you needed him to contribute to your own support.

I also suggest that you apply for orders of protection for your children and for you to have sole legal custody and care and control of them and for orders for him to continue to contribute to their maintenance under the relevant Acts — The Guardianship and Custody Act and the Maintenance Act. You must also ask for orders to be made for all of you to have counselling/therapy and it should be argued that it is necessary for him to also have such sessions so that in time he can again be around the children and have a healthy relationship with them. This falls within the ambit of the Domestic Violence Act.

Now about his claims relating to your property. The Act which governs this is the Property (Rights of Spouses) Act. There are certain things that you must bear in mind — and that is that a common-law relationship only comes into being after living together for five years continuously, and only if you both were single throughout the period, and that you both intended it to be permanent and lived together as man and wife. So for you and he to have a common-law relationship, that is going to be based on these facts to which a court will apply the relevant law and decide.

So after the continuous living together, as I said, and the five years have passed, that is when you both would really start your lives as common-law spouses. Yours now would be one of 'short duration', which is a term used in the Act. The long and short of all this is to tell you that the sharing of property interests is not a matter of course — the court has to be satisfied that it ought to give the other spouse an interest in the other's property and if so, how much — what percentage. In many circumstances the other spouse can get a one-half share or a very small share, or nothing at all.

The court must consider that you purchased the property before he moved in and that he just stayed and changed his visiting relationship and that it was not at your invitation. In addition, it would consider the fact that you did not object because you were a victim of his abuses, and that you were disabled from taking any decision against this, and he became resident in your home without your consent, or if it is implied that you consented, that it was under duress.

The fact that he may have given you some money when you were doing the addition does not necessarily give him any interest. He could have done so as a gift to you or to compensate you for the fact that he had been living there without paying any rent. And it does not seem to me that at the time he spoke to you about the money being for the purpose of him contributing to improving the 'home' as 'the family home' as defined by the Act, and that you agreed. This is also something that the court must decide — the question of whether it was a family home or not. It cannot be made so just because he wants it to be so and thereby gratuitously enrich himself at your expense.

Do not accept any statement from him about his so-called entitlement to some interest in your property. To me, your situation is very strong and his is not. Just make sure that you get a very good and strong lawyer and get yourself and your children free by acting to protect and defend your rights by using the laws which exist for this purpose.

I hope I have clarified the points for you and you can move ahead with confidence. All the best to you and your children.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.


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