Splitting assets after a break-up

DEAR MRS MACAULAY,

I am Canadian. In 2015-2016, I started to visit Jamaica a few times a year during my vacations to Negril. I met my partner, a Jamaican, in 2016. On May 8, 2017, I bought a furnished board house in Sheffield, Westmoreland, on the advice of my partner. A contract was signed between myself and the owner of the house (I wrote the contract myself on the suggestion of the seller). I was also told by my partner and by the owner of the house that buying a board house on rented land was not an issue in Sheffield.

Every year since the purchase in 2017 I invested to renovate or add to the house. I also helped my partner financially when needed. I paid some CD$14,000 for the purchase of this house and added more than CD$13,000 afterwards.

From 2019, now retired, I started to come to Jamaica and stayed three to five months each year and live in the house with my partner. Last winter the relationship ended.

My first impulse was to sell the house and leave. I put an ad on the internet but learnt shortly afterwards that I could not sell the house because the owner of the land would not agree. My partner did not want to leave either. An attorney told me that under The Property (Rights of Spouses) Act, my partner became my common-law partner after five years of living together (even though I did not live there all the time).

We finally agreed that my ex would stay in the house and give me half the value of CD$15,000. My first choice was to have him leave and pay him CD$7,500 when I learnt I couldn’t honestly sell it. He refused, so I decided to let things go and accepted his offer that he would pay me his $7,500 in three instalments.

He never reimbursed me any money. What is my recourse in case he does not pay?

I must start by stating that I am extremely disappointed and shocked at the contents of your letter. I could not understand why you would purchase real property in any country, without consulting a lawyer to be informed and advised about the laws in relation to interests in land and of buildings on or attached to land. You should also have satisfied yourself that you could dispose of your interest whenever you so wished.

You, however, acted on the advice of your partner, who had his own interest to serve and could not possibly give you either independent advice or legally correct advice. You also drafted the agreement of purchase and sale. This is all very extraordinary!

You chose to follow to accept what you were told. The land laws in Jamaica apply in the entire country and no single town can say that a particular holding in land is accepted there, when it may be a questionable or an insecure holding. A freehold legal interest in property, apart from giving you the right to occupy and use it, also gives you the right to sell it or rent it or give it to someone else.

You certainly did not obtain a freehold interest in the real property (land) on which your house is situated. In fact you have not stated whether the house is attached to the land or whether it is a moveable house. You purchased only the board house, but if it is attached to the land, then the principle that the house which is attached to the land becomes a part of the land, would apply. If it is not attached to the land and/or it is moveable, then it does not become part of the land but is only chattel, personal property…

There are so many points which you failed to check and satisfy yourself about before you purchased the house. Did you check the alleged lease of the land to ascertain whether the seller was and is in fact the person who leased the land? And that he owned the property and therefore had the title/ownership to be able to sell it to you? You do not seem to have done any of these.

What the lawyer told you, also, was too simple an exposition of the law relating to the requirements of the status of common-law spouses. There has to be an application made to either the Supreme Court or the Family Court of the parish in which the house is, for a declaration that this man was in fact your common-law spouse, and he and you would have to meet the definition of “spouse”, and the house must also meet the definition of “family home”. Also, you both actually would have to meet the definition of “cohabit” in the Act. So must the board house meet the meaning of “property”.

Your ex-partner has no legal status of being your common-law spouse, and he cannot claim a one-half interest in your property, and he is not entitled to it just because a lawyer told you so. He must take the legal steps to be so declared.

In addition, even if a court decides that you were common-law spouses, you would ask the court to decide, in the circumstances of your annual short visits, and without any input by him, whether he is entitled to a one-half share or any other proportion, or none at all.

In my view, he is not entitled, and you should get a good lawyer and apply to the court to make declarations that you were not in a common-law union with him and that he is not entitled to a half interest in your house or any portion at all, and for orders that he vacate the premises within a specific time, by a fixed date.

In other words, please get yourself good legal representation so you can act and move on with your life unencumbered by this man who never contributed anything, but kept taking monies from you.

I wish you all the best. And always get legal advice before you take any action with legal consequences.

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.

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.