I want the children to get the house

By Margarette MACAULAY

Monday, January 16, 2012

Dear Mrs Macaulay,

I have been married for 13 years but I am no longer living with my husband. My husband owned a house with his three brothers which I bought, but I kept my husband's name on the title. He owns 50 per cent of the property. We have two children together - 25 and 15. The children live at this residence with their father. I pay every single bill for them and for my husband. I have also been paying to do upgrades to the property. My husband works but does not earn a lot and he is sick so I help him out with his medical expenses as well. I am the only one who took a mortgage on the house which is owned as tenants-in-common. I want to divorce my husband and get on with my life but I want to ensure that the children are given his portion of the property since I am the only person footing all the bills. He has a female friend I am told who visits him frequently and I do not wish for the other half of the property to go to anyone besides his children. He is also spiteful enough that he might leave his half to his brothers and not his children. Apart from doing a transfer of his share to the children (which he is not willing to do), and a will, please advise me how I can ensure that he leaves his share to our children. I thought about having the title changed to joint tenancy but if I die first he would end up getting my share and I do not want that. He is willing to sign a document that will give his share to the children after he passes.

My dear, your kindness and generosity to your estranged husband is surprising and idealistic. Yet you don't have in place an agreement with him that he holds his interest in trust for your children which I am sure was your intent at the time you bought the premises.

You could have also purchased the property and registered it in your name alone and then entered into an agreement with him, that he could continue to live there for the rest of his life rent free, but with the proviso that if he remarries in the event of the dissolution of your marriage, or seeks to cohabit there with another woman, that his occupation thereof should automatically cease.

You did neither of these, but since you can, I am sure, prove that you bought the premises, and obtained and are paying the mortgage on your own, if you can also show that the reason you put his name on the title as a tenant-in-common of 50 per cent interest was because the children were young and that it was being held by him in trust for them, then you can apply to the court for a declaration of interests and for a partition of interests in the property.

You should, in such circumstances, apply for a declaration that you are entitled to 100 per cent of the interests in the property.

He after all received his one-third of the proceeds of sale of the property when you bought it. However, you had to continue to pay for the household expenses and for the maintenance of the children and also assist with his medical expenses!

Because he is not prepared to sign a transfer to pass the 50 per cent interest he holds by your acts, and yet he says he is willing to sign a document which will give his share to the children after his death, you can assume that he may feel that in this way, he can renege on such an agreement.

What you must have is an agreement under and by virtue of the Property (Rights of Spouses) Act. Pursuant to this Act, as long as you follow the provisions relating to spousal agreements strictly, you and your children would be protected by an agreement signed by him.

Each of you must have your own lawyers, who must certify on the agreement that they explained all the terms of the agreement to you and that you stated that you understood and agreed with them before appending your signature to the agreement in their presence.

Such an agreement would bind him and his estate.

You must seek the services of an attorney-at-law in order to protect and ensure that your children obtain the property interest which you sought to obtain for them from their father, who made no contribution to the acquisition of it for them.

Good luck. You must do this before you finally obtain your divorce.

Margarette May Macaulay is an attorney-at-law and a 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.

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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I want the children to get the house