Wife sets husband 'free' after promise of remarriage, but...

All Woman

Dear Mrs Macaulay,
I was married for 11 years, lived with my partner for 17. My husband left in 2017 and went overseas to work. Two months after, he called me to tell me that he decided to stay without talking to me first.

I went ahead and signed the divorce papers and set him free, because he said he would sort himself out and then, in turn, marry me again. However, he changed his mind. Now he wants me out of the house ASAP.

Is it possible for him to throw me out of that house? Also, am I not entitled to a settlement although we signed a consensual agreement?

You have not given me cogent facts and, certainly, not enough. You have not stated when he had divorce papers sent to you and you signed them, “setting him free”.

I understand that you clearly believed him when he said he would marry you again after he sorted himself out. Then you mentioned a “consensual agreement”, but you say nothing about the subject and object of the agreement. You also do not say when you signed this agreement.

You did not say whether you had separate legal advice from your own lawyers before you signed it, what the lawyer said to you, in fact, what exactly the lawyer did and what you said to questions asked of you before you signed it. You also did not even hint at whether he alone owned the house and it was registered in his name.

You have made my job to answer you very difficult because of the large and pertinent gaps in your letter. I am sure you must have been really upset when you wrote, so I will have to try to assist you to do what you should to protect your interests.

The first thing you must do is to find a good lawyer and retain this person. Tell them everything. You must do so quickly, so that no more time passes.

Despite the paucity of facts in your letter, as long as your “ex-husband” is the sole owner of the property or he is a tenant in common with another person, it is clear that you can claim for a declaration of your interest in the property and for the necessary orders to be made to enable you to collect your share — be it through the sale of it and the sharing out of the net proceeds between you and your 'ex-husband', or he can buy out your share, or you can buy his share.

Even if the consensual agreement you signed was about the property, and that you agreed you had no share in it or that you would not make a claim for any interest in it, as long as you did not have independent legal advice during which your separate lawyer explained all the contents of the agreement to you and their effect and consequence, and you clearly stated that you understood it all and agreed with it, and the lawyer wrote and signed a certificate about the explanation, your understanding all of it, and your clear agreement to all the contents — you can ask the court to examine and overturn it as being null and void.

This would be because, in addition to these requirements I have just mentioned, it is clear that you were seriously misled by him to get you to sign it.

In my opinion, you would succeed in getting it thrown out, whenever he made you sign it. I do not, for a moment, believe that you signed it of your own free will and with full understanding of the true consequences if you signed. There was clearly deceit and consequently duress, and absolute bad faith.

This sort of conduct is provided for in the Property (Rights of Spouses) Act, to protect spouses and ex-spouses who act like you — doing everything your man tells you, either because of fear of him or because of his deceit. This is the law which says, on the face of it, you would be entitled to 50 per cent of the property interest. It also provided that you should make your application within a year of your divorce.

However, it also provides that this period can be extended on application; as long as the reason for your delay in filing your application is reasonable, the judge can extend the time for you to file your application. You should go for it and do not move out of the house.

Your lawyer can also apply for an injunction to prevent anyone attempting to put you out. If you have, in fact, been put out, then get your lawyer to get an order enabling you to go back in, at least until the court decides your claim for your share and the nullifying of the so-called consensual agreement.

Additionally, you could be entitled to have maintenance from him. You must talk to your lawyer about this also, because it must be difficult for you to manage to provide for yourself without his support. If this is so, you must also apply for maintenance.

This man has treated you abominably and dishonestly; you must apply to the court for your entitlements. Do not let him get away with it.

Go and get your lawyer now and file your applications for, firstly a declaration that the agreement is null and void; secondly, for a declaration that you are entitled to 50 per cent interest in the property. Next you should follow the claims for the necessary orders to effect the declaration and get your share into your hands; and the necessary injunctive orders to keep you safely and unmolested in the house; and maintenance.

You did not mention children, so if there are any you may have to apply for their support even if he is providing for them, because he may change his mind and stop.

I think I have gone as far as I can to get you to understand your position and the fact that it is up to you to get your due portion; and that you can, if you act under the law which was passed to ensure that what your ex is trying to do to you — to make you homeless and possibly destitute — does not happen.

So act now! Go and get your lawyer and file your claims.

It is up to you to act in your own best interests.

Good luck.

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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