Dear Mrs Macaulay, My wife and I struggled financially for years. She moved out, and about four months after, I inherited a home, a business, and a large inheritance from a grand-aunt who passed. She has now filed papers claiming that she is entitled to half of what I have, even though when she moved out, we were destitute. She said we were still married when I came into my inheritance. What can I do to stop this craziness? We have no children together.

It is so unfortunate that your wife decided to leave you and your matrimonial home, bringing your marriage to an end after so many years of you both struggling together to survive financially.

Then for you to be blessed four months later when your grand-aunt died, leaving you her estate comprising her home, a business, and what you describe as a large inheritance, which I understand to mean money. You then state that your wife then filled papers claiming that she is entitled to a half of all you inherited as you were still married when this occurred.  You therefore wish to know what you can do to defeat her claims.

You must defend yourself against her claim, and do so by obtaining the services of an attorney-at-law. Do not worry, the situation is not as simple as your wife seems to think.  The laws which are applicable in the circumstances you have concisely related are the Property (Rights of Spouses) Act 2004 (PROSA), and the Maintenance Act 2005, and their amendments.

First of all, the home you inherited does not fall within the definition of the family home which you had with her under PROSA.  It defines “family home” as the dwelling house which is (or was) solely owned by either of the spouses or both of them, and was habitually used by them or from time to time as their only or principal family residence, plus all its land, buildings or improvements thereto… “But it shall not include such a dwelling house which is a gift to one spouse by a donor who intended that spouse alone to benefit”.  The provision therefore in PROSA, in Section 6 about the presumptive shared interest of one-half to spouses where the husband and wife have separated and there is no likelihood of them reconciling, or a decree of divorce or of nullity have been granted, would not apply to your circumstance. In addition, Section 7 provides that the court in dealing with the circumstance in any case where the facts causes the court to conclude that it would be unreasonable or unjust for the one-half proportions of spouses to apply, it may on an application make an order it thinks is reasonable once it has considered the factors the court thinks are relevant, including the fact that the family home was inherited by ONE spouse, and other stated factors which do not apply to your circumstance.

The business and money you inherited fall within the definition of “property” also under PROSA.  For these, Section 13(1)(c)  where you have separated and there is no reasonable likelihood of reconciliation, an application must be made within 12 months of the separation and this seems to have been done by your wife.  In any event, an application can be made for this 12 month period to be extended.  Then Section 14 details the factors which the judge should take into account in deciding what to do about the business and the money you also inherited.

Remember the “family home” provisions are separate, and I have dealt with those above.

So what are some of the factors the judge must take into account? Some are, that there is no family home, the length of the marriage, and any other such fact or circumstance which in the court’s opinion, the justice of the case requires that they be taken into account. In addition, the judge must consider the contribution of the parties to the management of the household and the performance of household duties and the effect of any proposed order upon the earning capacity of either spouse. The judge must also be satisfied that any order made is just and equitable in the circumstances of the case for the parties.

The issue of maintenance of your wife could and may be considered by the court, especially if is decided that your wife is not entitled to any share of any part of your inheritances, because if your wife is in need of maintenance from you, you are obligated in law, under the Maintenance Act, to provide this for her.

The Act in Section 4 states that spouses have an obligation to maintain each other as far as it is necessary to meet the reasonable needs of the other spouse who cannot practicably meet the whole or a part of her needs, and as the justice of the case requires to be taken into account.  The matters which the court must take into account are the same really as those I have listed above from PROSA, like the length of the marriage, what the spouse contributed to their lives together, and their economic circumstance.

It is my opinion that though your wife in all probability would not succeed in getting one-half share of your inherited properties, that she would succeed in a claim for maintenance (which the court can itself bring into the proceedings) and the court would conclude that a contribution from you for her reasonable expenses would be just and equitable and order her maintenance and for such a period of time as the judge deems necessary and just.

I hope that I have clarified the position for you.  But please go and retain a lawyer to represent you to answer to and defend your position to the fullness of the law and ensure that justice is served.  This is not a matter for you to just turn up in court to act for yourself. Please get your legal representation so that use can be made of the laws which exist to answer your wife’s filed claims effectively on your behalf.

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.