Dear Mrs Macaulay, I have been married for 20 years, with five children. Last month I found out my husband has been in another relationship for almost 10 years, and they have two children together. He has been using money from our joint account to pay their rent, school fees and vacations. Now he says because he is the breadwinner and supported everyone, I shouldn’t get half of our assets. I have been a stay-at-home mom all this time, and I get a small income from my hobby, and those funds went to the joint account. Does his affair or how he spent our money affect the divorce and mine and my kids’ entitlements?

My first response to your unfaithful husband’s statement that because he is the breadwinner and has supported everyone that you should not get one-half of your assets, is that he is not a judge and he is not qualified to pronounce on the provisions of the laws which apply to the circumstances you have related, which were caused by his underhand, dishonest and unfaithful conduct for so many years. Do not despair. There are laws in place to protect you .

Even though since 1989 we have the grounds for divorce being only that the marriage has broken down irretrievably, the grounds/facts which caused the break-up of the marriage must be stated in the petition filed for the dissolution of the marriage. Your position and that of your children can only be adversely affected if your legal representative does not file all that can be pursued in law on your behalf; for instance, a maintenance application for you and any of your children who (with the amendments to the Maintenance Act) are entitled to still be maintained due to their age and educational circumstance.

As a stay-at-home mom and wife for all the 20 years of your marriage to date, you are therefore entitled under the Matrimonial Causes Act and/or the Maintenance Act to continue to be maintained by your husband. Your maintenance could be fixed during the consideration of your maintenance application, for you to have a one-time lump sum or periodic payments over a period of time, or for life to be paid monthly, quarterly or bi-annually. There is no question that you are legally entitled to be maintained by him.

All or some of your children, depending on their ages and whether they are still engaged in educational pursuits, could pursue applications for their maintenance, either through you applying on their behalf, or if they are over 18 years of age, they can themselves apply for their maintenance to continue so they can complete their education/training which could go on until they are 23 years of age.

You must be proactive in insisting that your attorney-at-law should also, pursuant to the Property (Rights of Spouses) Act (PROSA), as soon as appropriate, file your claim for the declaration of your interest of 50 per cent in your family home (even if it is registered in your husband’s name as the sole legal proprietor and he had paid for its purchase, the deposit and all mortgage instalments). Also claim for a declaration of your 50 per cent entitlement of the proceeds of the joint bank account and for this to be paid over to you; and for an order for your husband to account to you for all sums taken therefrom, without your knowledge and consent, to provide for his other family’s maintenance for all the years he did so, and for your 50 per cent share thereof to be paid over to you also. If there are other properties or other assets, including stocks and shares, motor vehicles and of course the contents of your family home, all these should be addressed in your claims for the necessary declarations of your interest and for the consequential orders for you to have your declared shares.

As you must know, there is a presumption of an equal share between spouses in the family home, even if it is registered only in the name of one of the spouses. The provisions of PROSA and my experience caused me to state what I have above, and for me to also suggest that the following also be considered for claims to be filed for you and security for yourself and your children under the said PROSA, with respect to the family home. Of course, these are on the assumption that the home is owned and not rented. It is for a claim for the court to vest the family home pursuant to PROSA Section 23 (a) that the family home be sold and your share of the net proceeds be paid over to you. Or, under section 23 (g), to vest the whole interest in the family home in you solely and for you and your children to occupy the same.

I hope that all the above has clarified the position for you that the law is on your side and that your husband, whatever he says, is not the decisive voice about the issues he has caused by his wrongful, dishonest and underhand behaviour. The law trumps all, but it is for you to ensure that you obtain your own attorney to act for you and your children’s interests.

You are on a strong footing, but you must make sure that you apply to the court for everything the legal provisions provide could be yours, so that the court can make the appropriate orders to give you your entitlements and protection and those of your children.

The interests of his other children cannot be denied (after all it is not their fault that they were born that way), but he must provide for them from his own share and not from yours, except with your knowledge and consent. So please get your lawyer and move ahead as soon as you can to protect your interests and those of your children.

All the very best.

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