Ex wants me out of the family home

MARGARETTE MACAULAY

Monday, October 15, 2018

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Dear Mrs Macaulay,

I was in a relationship with the father of my three sons for 14 years. We lived together at his mother's house in a one-bedroom detached apartment for six years with the first two boys. He purchased a three-bedroom house in 2002 and in 2004 we moved in with the two boys. In 2006 we had a third son.

In June 2011 my spouse met a woman on Facebook and committed himself to the woman. He moved out of the house leaving me and the three boys. He now has me in court. He says that l am a tenant at will and he wants his house. He says l don't know how he came by the house and so l am entitled to nothing. His two daughters before our relationship and our first two sons and his name appear on the house title. Does the fact that the children's names are on the title affect the percentage of the property l am entitled to? We will be going to mediation to try to settle outside of court. What are some of the things I am allowed to put on the table in trying to resolve this matter?

 

I am sensitive to your pain and sense of betrayal. You have, however, not stated when your children's father registered the property in the names of himself and his children and what kind of way they hold their interests. These questions of when this happened and how the title is held are important for me, or your attorney, to address your questions properly. The question of your entitlement and the possible size of it rests on these answers.

One thing is for sure, you are not, and I repeat, not, a tenant-at-will. You went into the premises as a spouse at common-law. I hope you have instructed your lawyer to apply for your declaration as such a spouse from after your fifth year of cohabitation until its termination when he went off with his Facebook person. This is important because as a spouse you do not need to know how he got the property to be entitled to a share in it. The Property (Rights of Spouses) Act provides for this.

If he added the names of the children to his on the title of the property when he got it in 2002, then you can only get your share from his interest and if they hold their interests as tenants-in-common. With tenants-in-common, each person on the title holds their interest separately from the other, so you can ask for your share from his without disturbing the holdings of the others. But if they hold it as joint tenants, you have a problem, as then they hold it together as a whole, there are no separate shares, and his share can only be separated if the joint holding is severed.

So if he joined their names, say, after he knew of the Act or after he started his current relationship, then pursuant to the provisions of the Act, if the court accepts that he did so in order to defeat your claim for your share, the court can nullify his action or order him, having determined your share, to have a valuation of the premises done so that the value of your interest, be it 50 per cent or some other percentage, can be easily ascertained. There should also be orders that the net monetary value of your share should be paid to you and within what period of time all the steps should be done.

The fact that the children's names are on the title can affect your interest depending on the facts I have mentioned above or not, depending on the time it happened and his intention when he did it.

You ask what you should put on the table for the mediation you both have agreed to try. The short answer to that is that you must put everything you did — caring for every member of your family over the years, the fact that you and he and the two older sons lived in his parents' home for six years, etcetera, etcetera.

Also put whether he completed a course of study or training during your cohabitation while you looked after/cared for the family, whether you personally need assistance for your current and future maintenance, and what you need in terms of money. You must ensure that you also deal with the maintenance for your children, not only up to 18 years of age, but up to after their undergraduate qualifications are obtained or when they reach 23 years, whichever is sooner achieved. This will save you having to apply before their 18th birthday to have their maintenance continue until they finish their studies. You must provide how much each child needs for their maintenance, and agree to incremental sums to be added annually to deal with inflation and increased costs without having to keep making applications often.

At the mediation do not feel that you must agree to any offer made. Seriously consider the offers and whether you can live with it or them. If you cannot, then put forward your own offer based on what you consider reasonable. Your mindset should be that you will make efforts to reach an agreement and though you should compromise, this applies to you both, not you alone. What I am saying is that you should not allow yourself to be pressured to agree, though you do not really agree. Do your best to get a reasonable settlement for you and your sons.

Good luck with the mediation and if you do not agree to a settlement, do not be afraid to go to court. All the best to you and 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 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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