Dear Mrs Macaulay,
My husband and I have lived together since 2006. We got married in September 2011. Before we met he'd bought his house, and after we got married he added his son as joint tenant in 2013. Was it legal for him to do that? His son is over 40. Am I entitled to 50 per cent if he dies? Can I take him to court?
It seems from your letter that you and your husband had already qualified as common-law spouses under the law when you married in 2011, as you had lived together then for five years. This would be valid as long as you were both single then, and lived as if you were man and wife. However, this was superseded by your marriage in 2011. You also, from 2006, lived with him in the premises which he had purchased before you commenced your relationship, which was registered in his sole name, and after your marriage you both continued to live there. So it clearly became your 'family home'.
I will answer your last question first. Yes, you can take him to court since he added his son on the title as co-owner. It seems that he did this so that the son, in law, on the face of it, would get the whole property after he dies. By doing so, he was taking steps to ensure that you, as his wife, would not get any part or interest in the property after his death. In other words, he was taking and took steps to defeat the interest you had acquired in law, whether it be 50 per cent or some other percentage.
The Property (Rights of Spouses) Act provides that the court can decide to award a percentage other than 50 per cent if it considers that it would be unreasonable or unjust for each spouse to have a one-half share — in your case, like the fact that the family home was already owned by one of the parties at the time of the commencement of cohabitation or before the time of marriage.
The Act then provides further that when the title is in the name of only one spouse, then subject to any other relevant provisions in the Act, the other spouse may take any necessary steps to protect their interest in the property, including lodging a caveat pursuant to section 139 of the Registration of Titles Act, and that any transactions concerning the family home (which in my view it had become if not before, then definitely after your marriage), must be made with the consent of both of you. You therefore have the legal right to make an application to the court to seek declarations about your entitlement to interest in the property and that his purported transfer adding his son as a joint tenant is null and void, and for orders consequent upon the declarations in your favour, that the transfer be cancelled and for securing your declared interest therein.
So you should obtain the services of an attorney-at-law to assist you to apply to the court, pursuant to this section of the Act, that your husband acted without your consent about the adding of his son as a joint tenant. In fact, your affidavit in support would show that you did not know at the time, and that it was when you found out that you sought legal advice.
There is also the provision in section 22 (1) of the Act, that if the court is satisfied that his disposition of interest to his son was made to defeat your claim of interest in the property, that the court may, on an application by you, order that his son must transfer his interest to you or pay a sum of money into the court or to you, representing the value of the interest transferred to him. The court can make any further order it determines to ensure that justice is served pursuant to the intent of the provisions of the Act.
If your husband had done what he did after you had already applied to the court, and without your consent or the leave of the court, he would have committed an offence and would on conviction in a summary trial, be liable to a maximum fine of one million dollars or imprisonment for up to 12 months, or to both a fine and imprisonment. Though this is not the case here, the Act does not permit him to do what he did after you got married and certainly not two years after this.
I cannot say for sure whether you will get 50 per cent declared as your interest, as the court can give you some other interest depending on its consideration of the facts. I hope I have answered all your concerns. You must now act yourself to make sure you obtain what you are entitled to in fact and in law.
You should not wait until after his death to apply to the court. You should apply now while he is alive and have the court sort out your respective interests since you have found out what he has done to deprive you of your interest which you should have had in law.
So please find a lawyer and move on to protect and secure your interest in your family home.
All the best wishes.
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 firstname.lastname@example.org; 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.