Dear Mrs Macaulay,
I have been separated for over a year now, can I still claim for matrimony? If yes, can you educate me on the procedures?
I suppose you mean 'maintenance' by the word 'matrimony' and also perhaps what else a separated spouse can apply for and possibly obtain.
So because of the shortness of your letter and consequently the scarcity of facts, I must assume certain things. For example, I assume when you say you are separated, that you are legally married and not that you were cohabiting and that situation no longer exists. Even though a common-law spouse and a wife both have the legal capacity to apply for maintenance contributions and for declarations of interests in family property, both real and personal, and for orders for partition and/or sale and division of proceeds on the basis of the percentage of interest declared by the court, I make the assumption that you are a married woman so that I can tell you certain things specific to such persons.
As a married woman, the Matrimonial Causes Act requires you to have been separated for at least 12 months before you can file a petition to dissolve your marriage. Then your petition should include, as one of the claims, that you want orders relating to the custody, care and control of your children if you have any minor children. Then it should have a clause for their maintenance and one for your own maintenance.
If there is family property — even if it is held in your husband's name only — you must also put this claim as part of what you are claiming in the petition. When you do this, it is easier for you to then proceed with these claims by a more simple application process and which can be completed quicker. If you do not, you will have to apply by another process which would take longer to complete.
Please do not conclude by this statement that I am urging you to go that route. I am not. I am merely informing you about this, so that you know that you are legally in good time to apply for a divorce and for maintenance and other orders now or when you make up your mind to go that route.
You should also know that if your spouse is the one who files the petition for divorce, you can also then apply for maintenance and for any of the other orders and/or declarations I have already mentioned.
Anyway, you need not wait for a petition for divorce to be filed before you file an application for maintenance, or for custody care and control of any minor children, or for the distribution of family property. These can be applied for as soon as you wish.
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.