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All Woman


Hubby brought his girlfriend to the matrimonial home

By Margarette MACAULAY
Monday, July 30, 2012


Dear Mrs Macaulay,

I am currently residing in the United Kingdom. I have been married for 14 years. In January 2010 my husband told me he would be going to Jamaica for a family birthday party, but I subsequently discovered that he had booked a family holiday for himself, his ex girlfriend, and her teenage daughter. They spent a full two weeks in our matrimonial home that we had built together in Jamaica

We had remortgaged our home here in the United Kingdom and also borrowed loans to build that house. The affair caused unrest in the relationship and he moved out. Now he is filing for divorce here.

I am looking for some support with reference to gaining information on jointly owned properties in Jamaica, where the owners reside overseas. This is because my husband is trying to tell me that the house in Jamaica is his and I am not entitled to half. While he was vacationing in Jamaica he told family members that he and I were already divorced, and that he has sole ownership of the house. How do I ensure that I am fairly treated and get what is rightly mine.

It is always sad when a marriage or settled relationship breaks up and it is even sadder when it is of such a long duration. It also is particularly painful when the break-up is the result of lies and unfaithfulness, and in your case, your spouse was particularly disrespectful.

However, you should not despair. You will recover from the pain of your husband's disrespectful and abhorrent conduct, because any man who would take his paramour and illicitly cohabit with her in the matrimonial home is not worth a moment of your time.

It doesn't matter that you both ordinarily reside in the UK. What is relevant is who are the persons registered on the certificate of title as the proprietors of the property and with what kind of tenancy. If you are both registered as joint tenants, then you both own the premises — the whole of it in undivided shares — and you will each, on a breakdown, generally be entitled to a 50/50 on the severance of the joint tenancy. So in these circumstances, if he wants to solely own the house and you agree, then he will have to buy your 50 per cent share at the real market value, following a valuation of the premises by a licensed valuator.

If you do not agree, you can try to buy him out, or if neither of you can buy the other out, the property will have to be sold on the open market and the net proceeds shared between you 50/50.

If you are registered as tenants-in-common, then you each own 50 per cent share individually and independently of each other. The possibility of either of you buying the other out would also apply in these circumstances and failing this, a sale in the open market.

If you both cannot agree on what steps to take towards the partitioning and division of your interests in the property, then you must, of course, apply to the court here in Jamaica for a declaration of your respective interests, and for orders for the interests to be partitioned and by what means you will each obtain your respective interest as declared by the court.

If only his name appears on the title, you must quickly apply to the court here for a declaration of your respective interests in the premises and for the consequential orders you require to obtain your full interest as declared by the court. These would generally be that either of you can buy the other's interest and failing this, that the property be sold on the open market after a valuation by a licensed valuator agreed by you both, or chosen by the registrar of the Supreme Court if you fail to agree. Then, your attorney-at-law should have carriage of any such sale and he or she shall then pay out the net proceeds to the parties as ordered by the court.

I'm telling you to apply quickly because you did not say that you were both registered on the title and I thought it best to mention this latter circumstance, just in case. You must act quickly in order to lessen the chances of him effecting a transfer of the property to himself and some other persons in order to deprive you of your share. Though this will not deprive you of your interest, it adds complications. So I advise that you must quickly file your application as I have mentioned because if he then makes any attempt to sell it, or obtain a loan using it as surety for the loan, or transfer it wholly or a partial interest of it after your application has been filed, then he will be committing an offence under the Property (Rights of Spouses) Act.

If he is charged and convicted he will be liable to be fined $1,000,000 maximum or sentenced to a maximum term of imprisonment for 12 months, or both. The level of sentence will, of course, depend on how egregious the judge considers his actions to be.

The court can also order that the sale, transfer or other dealing which has not yet been completed be restrained or if he had received monies, that he pays the monies into court to be dealt with as the court will determine. If the property is disposed of after the court order is made, it is, the Act says, void, and the court will have to decide what is to be done about any person who purports to have an interest in the premises and who makes such a claim.

Another matter which I must touch on is the fact that you both ordinarily reside in the UK and you have another home there. Yet you refer to this property in Jamaica as your matrimonial home. The Property (Rights of Spouses) Act refers to a family home, which is what I suppose you mean. The fact of living in the UK is not a problem that will bar you having any interest in it. I am sure it was for your use whenever you came home to Jamaica.

"Family home" is defined by the Act as the dwelling house that is completely owned by either of you or both of you and which is generally used, or used "from time to time" by you as spouses as the only or principal family residence. You must also show that while you were here in Jamaica it was your only or the principal place of your residence, in order to bring it within the meaning in the Act.

It really does not matter what your husband believes and what he has told his mistress and any other persons, what matters is what you do now about ensuring that the court here determines your interest in this property and makes an order giving you and upholding that interest. Remember, you clearly contributed to the acquisition of this home in Jamaica because you re-mortgaged your home in the UK and also borrowed monies in order to build the Jamaican home.

If there are outstanding sums due on these loans in the UK they must, of course, be paid off from the gross proceeds of sale either of the UK property or the Jamaican one before the net proceeds are divided in the proportions are ordered by the court.

So please get a lawyer in Jamaica and move on with your claim, especially as your husband has applied for divorce. Do not waste any time.

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. Mrs Macaulay cannot give personal advice outside of this column.

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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