Dear Mrs Macaulay,
My father is married to a woman who now resides in the United States. They were married since 1998. She has resided in the United States since 2000, 13 of the 15 years. For most of the 13 years she was an illegal immigrant and was not able to come to Jamaica. She has now become a permanent resident and is now suing him, and has returned here on several occasions. Now they are going through the process of divorce and she is wanting 50 per cent of his assets. She sent him maybe a little over US$1,000 since she has been in the US. I think because of the laws in Jamaica she is using this as her play card to basically extort money from my father. What does the law stipulate in this case?
I understand you concern for your father in the circumstances you have related. I, however, hope that your father took steps to answer and contest her claim for one-half interest of his assets despite what you clearly conceive as her lack of real support as your father's spouse for the majority of the years of their marriage. You and your father, I conclude, hold the view that she is not entitled to the interest which she is claiming in his assets.
You imply that she has failed to render "wifely" and/or emotional support to him for most of their marriage, as she was only physically present for two years at the beginning of their marriage, and that her financial contribution has been so minimal throughout the marriage of 15 years, that it can be deemed non-existent. You also mentioned that for most of the 15 years of the marriage, she was in the United States.
It is unclear from your account when their marriage broke down irretrievably. Did she go to the United States with your father's agreement, or was he opposed to her intent to do so? Was she removing herself from a rocky marriage or was it a joint plan for her to go there to work in order to enhance the family's financial situation?
When she returned to Jamaica, did she and your father cohabit as husband and wife? Did she in fact stay in the family home? If she did, did she stay separate and apart from him even though she might have engaged in some domestic activities while there? If their marriage had broken down irretrievably several years ago and more than a year before she filed her claim for 50 per cent interest in your father's assets, then she would fall outside the limitation period in the Property (Rights of Spouses) Act and she would have to apply for and be granted leave by the court in order to proceed with her claim. The limitation period is one year from the date of separation and the irretrievable breakdown of the marriage.
The 50 per cent interest of spouses in the family home is presumptive, in the sense that three types of properties are excluded from such division and the presumption of 50 per cent claim can also be denied either completely or proportionally by a court. In other words, a spouse who claims 50 per cent may on the claim being contested be held by the court to be only entitled to 40, 30, 20, 10 or no percentage whatsoever.
Since your letter is rather sparse on the details which are necessary for me to give you more specific answers and suggestions, I can only give you the broad strokes as I have done in the preceding paragraph.
However, let me repeat again that your father should contest her claim and in his affidavit, he must provide all the facts upon which he relies to demonstrate why she ought not obtain the declaration she is claiming of a 50 per cent interest in his assets.
If he had agreed with her plan to go to the US, he must state this clearly in his affidavit. He must also state whether or not she kept her part of their agreement to send monies home.
He must by means of the content of his affidavit (and possibly oral supporting evidence in the course of the hearing) demonstrate to the court what their intentions and agreement were, and what each of them did to advance or detract from what they agreed to do. This would assist the judge to reach a reasoned, well grounded and fair decision in the particular circumstances.
If he does not answer and contest her claim, then he will be giving her what she has claimed by in effect consenting to it. When a matter is undefended, the judge, after proper service of the claim on him has been proved, will have no choice but to grant her claim on your father's default/failure to contest it.
So please help your father to retain an attorney to contest the claim. I trust that he will act to try to protect his position and wish you both the best of 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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give personal advice.
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.