He wants to kick us out

All Woman

Dear Mrs Macaulay,

I have been living with my child's father since 2008 and we have a lot of problems. When I met him he was with his other child's mom. He is an exporter and I met him with his business; however, he needed help at the time because the business was expanding so I decided to resign from my job to help him out. During that time I got pregnant and we began living together. He would go to the other woman's house on weekends until he moved out completely to be with me.

We've had our ups and downs where he has abused me both physically and emotionally. Now, he has bought a 10-acre piece of land, and I realised that he didn't put my name along with his on the title — he put his mother's name. We also bought another piece of land along with some farm animals and I haven't seen the title. Now he is asking me to leave with my son and only the furniture in the house, with no place to live or any money. I don't know what to do. Do I have a right to anything?

Let me answer the most straightforward entitlement first — and this is your son's. He is entitled legally to maintenance from his father. This must provide shelter and all other necessities for his daily life. Since you were working in his father's business, which I suppose his father has also pushed you out of, you are therefore not in any position to contribute to the provision of all the money your son needs for all his living requirements.

I trust that the father's name and particulars appear on your son's birth certificate. If so, you can go to the Family Court which serves the parish in which you reside. There you can make an application to be granted custody, care and control of him, as well as full maintenance for him, which must include a sum of money for his portion of rental for the premises he must share with you.

If his name does not appear on your son's birth certificate, then you must file, at the same time, an application for a declaration of paternity of your son.

Then about you — you and your son's father must both have been single persons when you started and continued living together for not less than a period of five years, as if you were in law man and wife, up to the time you file your applications. Note that this does not include the application for your son, as his rights are separate from yours.

If you meet this requirement then you can apply to be declared his spouse based on such cohabitation together. Upon such a finding that you were and are his spouse, you legal entitlements will flow. These are that you would be entitled in law to apply for and obtain maintenance for yourself from him. You would also be entitled to apply for your interest in the properties acquired by him during your period of cohabitation and for which he did not include you on their titles.

Your share as a spouse is prima facie 50 per cent interest in the family home — however, the court can decide to award some other percentage which it considers more just in the particular circumstances of the ownership of the family home. The same applies to all other properties, that is to say, all lands, the business assets and goodwill, personal properties like cars, furniture, money in bank accounts or cash, any debt owed to him, investments, and even interests which he is entitled to get in the future. If you received no salary while you worked in the business, this issue must be considered based on what you tell a lawyer about how this occurred. You may be able to claim for it or not; you have to tell your lawyer what exactly happened and how it did.

The property to which he added his mother's name on the title can also be subject to a claim by you for an interest therein. In this regard, if the court finds that he added his mother's name with the intention of defeating your claim to your entitlement, that court has wide powers to protect and ensure your interest.

Your applications for your property entitlements must be made within 12 months of the end of your cohabitation. The court can, however, permit the hearing of applications filed later, on applications for an extension of the time for filing and acceptable grounds.

You must retain a lawyer to assist you with your application, especially those relating to your own interests. I also think you should do so for the application for your son's maintenance to ensure that all his needs are properly provided for by his father, which an attorney-at-law can best argue and ensure. For your own, you need one to prepare your applications for you to ensure that you cover everything and keep within the laws which apply to your maintenance claim and that which applies to your property interest claims.

I know that you will say that you do not have any money, but you must try and get yourself a lawyer. It is not impossible as you can find one who is prepared to act and be paid later when you have received the benefit of the orders the courts would make on your behalf.

So please go and get a lawyer as quickly as you can so that your application can be filed as quickly as is possible. I hope that you now understand that you are not without legal recourse.

If you can't get a lawyer, you can go to the Family Court and initially apply for maintenance for your son and custody, care and control all at once and maintenance for yourself, with a declaration that you are a spouse. Then you can get a lawyer to act for you about your property interests, but you must not waste time even though you can obtain an extension of the time for filing these.

Good luck to you and your son.

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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