Dear Mrs Macaulay, My mother, a married woman, would like to add my name to a property that her husband has no financial interest in. Her husband’s name is not registered on the deed. Will she be able to add my name as joint tenants or tenants-in-common? Would her being married pose a legal barrier to this?

I am very happy to receive your letter, because many parents who have found themselves in your mother’s position are also not sure what they can and cannot do in such circumstances.

As I understand it, your mother is the registered legal proprietor of a property which she purchased by herself and with her own personal funds. You stated that her husband’s name is not on the title, and he made no financial contribution and has no financial interest in it.

You have not stated when your mother acquired the premises —whether it was before or after she got married — and if after, whether it was soon after.

Anyway, your mother, though a married woman, can in law effect a transfer from herself as sole legal proprietor, to you and her, for you both to be registered on the title as the legal proprietors (either as joint tenants or as tenants-in-common). The property is clearly not the “family home” as defined in the Property Rights of Spouses Act. A family home is defined as that which is wholly owned by both spouses or either of them, and is habitually used or used from time to time as the only or principal family residence. If the property was given to one spouse for her or his sole ownership, use, and sole benefit, or was inherited by one spouse, or was solely owned by one spouse at the time of the marriage or at the beginning of cohabitation, or when the marriage is of short duration when it was acquired solely legally and so registered, these do not fall within the definition of “family home”. If it was the family home, your mother would need to obtain her husband’s agreement to add you to the title and could insist that he be added then also. However, from the very sparse facts you have given, I have concluded that the property is not the family home.

So if your mother’s property falls within any of properties excluded in the Act from being within the meaning of “family home“, she can go ahead and get a transfer done. You should decide whether you would be joint tenants or tenants-in-common. With transfers from a parent or parents to a child or children, I always advise that the holding be joint tenants, so that at the death of the parent, their death can be noted on the title and the whole interest in the property by law passes to the other legally registered joint tenant(s). If there is more then one child, they can then decide whether they would continue to hold the property jointly, or severe it and convert it to a tenancy-in-common. This is because joint tenants hold their interest wholly together and all decisions must be made together until the death of one, wherein the whole then passes to the survivor. When the parties hold their interest as tenants-in-common, they hold such interests separately and can separately decide what they wish to do with their own interest. When this is the case, it is advisable to define the percentage of their interest in the property, if it differs from a neat division according to the number of parties being registered as tenants-in-common. Each tenant-in-common’s interest on their death goes to their estate, and it must be administered according to their provision in their last will and testament, or on an intestacy pursuant to letters of administration which would have to be applied for to the court, or if disposed of in a will by an application for probate by the testator or testatrix’s executors.

I advise your mother to retain the services of an attorney-at-law, to whom she can give all the relevant facts, so that she can, on such full disclosure, receive the benefit of legal advice which would ensure that no time and expense is spent by her husband filing and pursuing a legal claim that the transfer adding you to her title is contrary to the Property Rights of Spouses Act and should be overturned. It is always best to obtain legal advice before you take a legal step which would change either status or property interests, as this saves a lot of time, money, and emotional upsets later.

I trust that I have clarified the position for you and your mother.

Margarette Macaulay

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. All responses are published. Mrs Macaulay cannot provide personal responses.