After the abuse, wife now wants half the property

Margarette MACAULAY

Monday, February 06, 2012

Dear Mrs Macaulay,

I got married to my husband in the United States of America. We returned to Jamaica to live some time ago but I had to return to the United States about three years now due to physical abuse which started when I discovered his affairs with at least three women in Jamaica. I have no proof of the abuse as when I went to the local police station to report the matter they advised me that they could not register the report as I had no marks to show the abuse. They advised me to pursue civil action against my husband. I did not think their advice made sense and concluded that they were just trying to protect my husband who I think one of them knew.

My husband and I bought a house together as joint tenants and I now wish to have my half of the property. We also bought a car but this was registered in his name only. We did quite a lot of improvements to the house and I understand that my husband is claiming that he paid for same. The fact is that he physically bought the materials and paid the workmen but the most of the money used came from a joint account where funds from an apartment I sold were invested.

Although we are not divorced, can I proceed to claim my half of the property? I did not want to incur the cost of filing for a divorce unless I have to do so to get my half of the property.

If I have to divorce him to get my half of the property should I file for the divorce in the United States or in Jamaica? I have offered him the option of purchasing my half of the property but he has refused and has indicated that he has no intention of selling or leaving the house. Can you advise me of what my options are? We have no children together but he has children from a previous marriage.

Thank you for your letter to me. I believe that the police probably felt that without visible cuts and bruises on your body, you would have difficulty proving the case against your husband beyond a reasonable doubt. They should have advised you though to go to the Family Court or Resident Magistrate's Court's office in your parish to take out a criminal summons against him for assault and any threats of assault which he may have made. This would have been a private prosecution by you against him.

If you had been given this advice and you had acted on it, once you reported that you were there to take action because of your husband's abuse of you, the clerk would have directed you to the Family Court clerk if there was one there. If not, the clerk of the Resident Magistrate's Court would have assisted you to proceed under the Domestic Violence Act for protection orders to restrain your husband in a number of ways (depending on the particular circumstances of your case) from abusing you. And, you could also have applied for an occupation order, which if granted, would have either put your husband out of the matrimonial home, or restricted him to certain parts of it.

The Domestic Violence Act was passed, following years of lobbying by the women's movement because of exactly the way the police treated your complaint and also because female spouses too often, having reported abuse by their husbands, at the start of or during the criminal trials, either seek to withdraw their complaints or beg for the abusing spouses, much to the frustration of the police and of the court.

So the Domestic Violence Act was passed to co-exist with the criminal law against assaults, batteries and woundings, et cetera, to properly deal with all cases of abuse by and of spouses, and of family members and later by and of those in visiting relationships.

So since the Act was passed, victims of domestic abuse - that is men, women and children, have access to punitive criminal actions in the criminal courts and also to protective remedies under the Act.

If you had gone to court, you would have known that you had access to a court where you could have got protective remedies to protect you from your husband's abusive conduct.

But in your letter, you are now particularly concerned about the matrimonial properties - house and car - which you and your husband purchased during your marriage and while you were cohabiting. You also want to know whether you can apply for a declaration of interest and partition/division of interests in such properties without going through divorce proceedings first.

The answer to your query is yes. You can apply to the court for declarations and orders of your interest in the properties and so force your husband to either buy out your interest in these properties or you can get your interest through a specific order of the court that failing such a buy-out by him, that the premises and the car be sold and the net proceeds be paid out to you and to him in the proportion determined by the court.

He cannot prevent you from proceeding with such an action, nor can he prevent such orders being made in your favour on your application, his intention not to sell or leave the house notwithstanding.

He can only prevent this if he agrees to buy out your share on an amicable arrangement. If not, then he must suffer the determination of your respective interests as declared by the court and the sales that would be ordered by the court on your application.

So you need not apply for divorce in order to make an application to get your share of the matrimonial properties either here in Jamaica or in the United States. When you are ready to divorce him, you can apply in either place, as you wish.

Do try and get a good legal representative here and proceed to file your application to get your share of your jointly owned matrimonial home and of the motor vehicle which he registered in his name. You seem to have sufficient proof of your provision of funds and your contribution for the improvements from the joint account and especially as the proceeds of the sale of your apartment were put into that account.

I advise you to take action as soon as you can.

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. Mrs Macaulay cannot give advice via e-mail.

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After the abuse, wife now wants half the property