Dear Mrs Macaulay,
I live in Jamaica with my two sons and their father. Their father is absent most of the time on account of his work. He married someone else outside the country. Does she have any entitlement to the family home? Am I still covered under the law as a common-law wife?
I trust that you and your children's father have lived together as man and wife for at least five years and that you were both single persons during that period of time. Intermittent absences will not affect the five-year term, as in his case — going away to work for the family, then returning home to continue your lives together.
You say that he has married someone abroad. The Property (Rights of Spouses) Act provides that spouses have a presumptive interest of equal shares in the 'family home' and defines common-law spouses as I have already stated above.
The short answer to your first question — whether the wife has any entitlement in your family home with your erstwhile spouse — is that she does not, unless you do not act in your own interest and as a consequence you would lose your beneficial interest in the premises.
You are entitled to your half share in your family home, but you must apply to the court to obtain a declaration of your interest in the premises and obtain consequential orders in order to sever your interest from the whole. You should make your application within 12 months of the date of the breakdown of your common-law union. This would be the date of his marriage. You could obtain an extension of this one-year period as long as you have a good reason for any delay, and if it is not too long.
However, before your substantive application about your interest in the property is heard, you must apply for a declaration about your status, that is to say, a declaration that you were in fact and in law, up to the date of the marriage, his common-law spouse. This application and the one for the declaration of your interest in the property can be filed simultaneously, and they can even be fixed for hearing on the same date. The one for the declaration of your status will then be heard first, and the court can then deal with the property declaration. If you fail with the first, then your property interest application will be dismissed.
If you succeed and obtain the declaration that you were indeed his spouse, then the court will proceed to hear your substantive application for the declaration of your interest in the family home and make the appropriate orders for you to obtain your interest. In this application, you can also apply for orders that there should not be any sale of the premises until your youngest child obtains his majority, after which you and their father shall be at liberty to sell the premises and obtain your respective net shares of the proceeds of such sale.
You must secure the services of an attorney and do your applications as quickly as possible. Try to ensure that they are filed within the limitation period of 12 months from the date of the breakdown of your common-law union. You must proceed, even if he seeks to make a transfer to his wife, as the Act provides protection for you against any such act which is predicated to deny you of your interest in the family home.
You must also consider formalising the provision of maintenance by the father for your sons (and for yourself, if he had also been maintaining you). You should therefore make this application as well, as he may be influenced to stop his provision of maintenance of his children.
I hope that you will act quickly and so protect and secure your own rights and entitlements and the interest of your sons.
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 email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.