Does she have a claim to his house?
Dear Mrs Macaulay,
My sister lived with her common-law husband for over 13 years. They have no children together. The house they lived in for more than nine years is owned by him, he's the sole owner. Her name is not on the title. She migrated to the USA in late 2009 and only came back twice since then. When she came for the first visit she stayed at the house, however, when she came in February this year he refused to let her stay there. He told her that they are no longer together and that she is not welcome there. He is now engaged to be married and has had children. They are all living with him.
I told my sister that she is entitled to a portion of the value of the house because they had lived together in it for so long. She told him that he needs to sell the house and give her what she is due but he told her that she is not entitled to anything because she has not lived there for a long time.
Can you give us some advice as to the way forward?
I will try to explain as clearly as I can what in my opinion your sister should do, and do as quickly as she can.
Your advice to her was good and she must act on it now. Spouses can be away from the family home for periods of time which were not intended to be permanent — such as to find work or to do further studies or training, for example.
You say that they lived together for 13 years in all and in the house for nine years. She, therefore, would fall within the provisions of the Property Rights of Spouses Act, as long as they were both single throughout or for at least the last five years of their cohabitation. The fact that he is the sole registered proprietor does not mean that she cannot apply under the Act for a declaration that she is entitled to 50 per cent interest in the house and for orders consequent to such a declaration to enable her to obtain her share in the property.
She can apply, but the Act says that she must apply within one year of when the cohabitation was terminated. From what you say, they seem to have separated when she came in February, which is when he refused her entry into the home on the basis that they were 'no longer together'. The one year starts to run from the date he told her that their relationship was over. Even if he tries to imply that it had ended before, he would have to admit that they were together in late 2010, so any ending of the relationship must have been after that, and he only told her it was over during her February 2012 return trip.
Under the Act, a spouse can still apply after the year's limitation period has ended. The delay should not be inordinately long but it can be a year or two. In such a circumstance, she would have to apply for leave of the court to have the period she should have filed her application extended and then when granted, proceed with it and by the date ordered. But, I think from what you related, your sister is within time.
She should therefore get herself a lawyer and proceed as fast as she can with her application. Let her not be deterred and delay because she feels she does not have enough money to pay the lawyer, because she can ask for them to enter into an agreement about the fees and necessary expenses to proceed with the matter. Remember that she can also add an application for her furniture or their value if they cannot be delivered to her in a reasonable state of wear and tear.
I hope that the position is clear for your sister to act to try to obtain whatever the court says she is due. She should try and do so as quickly as she 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 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.