DEAR MRS MACAULAY,
My husband of over 20 years has taken on a mistress. I recently learned that he used his NHT benefits and bought property, and they are both joint tenants for the property. As the wife, do I have any claim to such property if I file for divorce or if he should pass away?
The Property (Rights of Spouses) Act 2004 defines property as any real or personal property, any estate or interest in real or personal property, any money, any negotiable instrument, debt or any other right or interest whether in possession or not to which the spouses or either of them is entitled. So according to the above definition, his NHT benefits fall within the term: “or any other right or interest whether in possession or not to which the spouses or either of them is entitled”. The Act also provides that the court may restrain the disposition of property if it is being made to defeat the claim or rights of a person under the Act, this is to say, if the disposition of the property has not yet occurred.
In such a case, on an application by a person whose right may be defeated, that is to say, you, and upon notice of it being given to the other party as the court directs, it may restrain the making of the disposition if it has not been made or completed. If it has been done, the court may order any proceeds which at the time of the hearing could be payable regarding the disposition, to be paid into the court to be dealt with as the court determines and directs.
The Act further says that the disposition referred to (by the way, this would among other things refer to the user of the NHT benefits) would still fall within the purview of the court.
In your husband’s case, he used it for the benefit of his mistress. In the next section, the Act provides that when the court is satisfied that any disposition of property as referred to in one of the previous subsections was made to defeat a claim or the rights of any person (you), the court may, on your application, order that the mistress who would not fall within the designation of a bona fide purchaser for value without notice, should transfer the property or any part of it to you or another person as the court directs, or that she must pay into court or to a person as directed by the court, a sum which cannot exceed the difference between the value of your husband’s contribution and the value of the property.
The Act further provides that in deciding to make either of the orders referred to above, it may make any further orders it thinks necessary to give effect to the order for a transfer or the paying of money into court or to you.
So you would have to apply to the court and rely on these provisions of the Act and have the matter argued that your husband did what he did to deprive you of your right to your share of his NHT benefits.
If your husband held property jointly with another person from before your marriage, then you would not have an interest in such a property, because joint property is not held in separate parts by the owners, but as a whole together. They hold the property as a whole, unlike tenants-in-common, who hold their interests in the property separately. For this to happen with jointly held property, the joint holding will have to be severed. Here your complaint will be that your husband acquired the joint property with his benefits with the woman to defeat your claim to your share.
You should therefore contact a lawyer to act for you. You should not wait until he dies; you should not delay to apply for a declaration of your interest and for consequential orders to give effect to the declaration about this matter of the NHT benefits. In relation to all other properties, if you wish declarations of your interests and for partition, sale and division of your respective interests, then you must act in this regard as the Act provides that you should file your application within a year of your separation or dissolution of your marriage, or you will have to apply for the court to grant you an extension if you have an acceptable reason for the delay.
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 email@example.com; 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.