All Woman

Pregnant for another man, but I still want half of hubby's fortune

YOUR RIGHTS

By Margarette Macaulay

Monday, March 31, 2014    

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Dear Mrs Macaulay,

My husband and I have been married for 10 years and we broke up, then I got pregnant for another man. All of this happened while I was still living in our matrimonial home. We have two children together, 13 and five. The house is in his name. He is paying for it. l have moved out six months now to live with my boyfriend. My husband still lives at the matrimonial home with the kids and his new girlfriend. Do I still qualify to get half of what he has? Could I still go back and live at that house?

On the face of it, you were married long enough for you to be entitled to obtain one-half of the family home and, depending on the factual circumstances of your married life, your agreements, understandings or course of conduct as to the rights, obligations and responsibilities of each spouse during the marriage, you may be able to obtain either 50 or some other percentage of interest in any other property your husband owns or is entitled to. For example, debts owed to him or shares and stocks investments and savings and such like.

The Property (Rights of Spouses) Act is the relevant legislation which applies to your queries. It is provided in the Act that for the court to have jurisdiction to hear an application of a spouse for declarations of interest in family and any other property acquired during the marriage. The application should be made within one year of the breakdown of your marriage or final separation resulting in you living separate and apart or of course, divorcing. If you seek to apply after the 12-month limitation period you will need to apply to the court to permit you to proceed out of time.

In order to succeed with such an application, you would have to satisfy a judge that it is fair and just for the extension to be granted and this will depend on the facts which caused your delay, which you will have to state in your affidavit in support of your application.

You have not stated how long a time has elapsed since you commenced living separate and apart, including while you were in the matrimonial home. You did say you actually left the home six months ago, but the time lived in the home as a separated woman must be added to the six months in order to calculate the limited period of a year. If it is near a year or more or even two years, you must retain a lawyer very quickly to file your applications for you with their affidavit in support. Both applications, that is to say the application for leave and that for declarations of your interests and consequential orders, can be done together in one process or filed separately and they can be fixed for the same date of hearing. However, that for leave of the court must be heard first. If you succeed with this, then your applications about your interests can be dealt with. If you fail to obtain the leave of the court, you will not be able to proceed with those. Your attorney will consider what chances you have of success based on the authorities on this point and your particular set of facts which caused your delay, and advise you accordingly.

If you are out of time and yet you succeed in getting leave to proceed, the court, on your substantive application to determine and obtain your interests in the relevant properties, will decide what, if anything, you are entitled to and in what proportion, and make the necessary consequential orders for you to obtain your entitlement.

As to whether you can return and live in the erstwhile family home I must first ask, why would you want to do so? You left after the breakdown of your marriage and after you had become pregnant for another man while you were still living under that roof. In addition, your husband is residing there with his girlfriend and your children. Do you not think that it would be an impossible arrangement and would only result in domestic stress and strife if you go and join in the present mix there?

In any event, as there is presently no declaration that you are entitled to one-half or any share in the premises, you cannot have vacated the premises and then just waltz back in whenever you feel like it. Even if there were declarations in your favour, you cannot do so. The situation would have been different if you had not moved out. You could have remained there until you applied for your share and until it is heard and determined and you get your due or not as the case may be. But when you left you gave up any right or licence to occupy it or a part of it and you cannot get it back without an order of a court, which in my view you will not succeed in obtaining.

I am aware that the children of your marriage reside there, but this would not give you the right to go back in to occupy a part of the premises which presently in law belongs solely to your husband. You went off and left the children there. You would, if you go there without a court order, be a trespasser unless your husband invites you and agrees that you can return and stay there, which in my opinion is not likely.

As I said, you should quickly seek to apply to the court under the Property (Right of Spouses) Act first for leave, if necessary, if the limitation period for you to have filed has expired. If you succeed, you can then proceed with your substantive application to determine what interest, if any, the court will award as your entitlement and the orders it will make about the manner, means and within what period you can obtain whatever share the court declares is your entitlement.

Do not let too much more time go by before you decide to and actually file your applications which I have mentioned, because the more time beyond the one- year limitation period expires, the less chance you would have of succeeding with your application for leave.

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 allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.

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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