Common-law wife wants her share of property

Dear Mrs Macaulay,

I have been living with my boyfriend for the past four years and we have two children together. We have been living at the house that he built by himself before we started living together. He has saved up all his receipts for materials purchased during the construction of his house. Though we were intimately involved at the time of construction, I had no financial or supervisory input in his construction project. This house is located on lands owned by himself and his sister as tenants-in-common. Recently we have been having relationship troubles and he started saying that I should leave him and go find someone else to live with because we are not getting along. I was wondering, according to Jamaican laws, what rights do I have as his children’s mother to claim continued residence in this house or to part proceeds thereof in the case of a sale. Also, what can I do, based on the stated facts, to make my current situation more beneficial in the event of a separation?

Thank you for your letter in which, with a few twists, you are really enquiring what rights, if any, you have as a spouse of four years, in property owned by your spouse and to which you have made no contribution to acquire, or to maintain or improve.

Let me start with the most important point — this is that four years of cohabitation does not, in law, qualify any spouse to acquire the status of a common-law spouse which would grant to either spouse the capacity to share, half and half, in the family home which is owned solely by the other. It is also insufficient to give such a spouse the capacity to apply for and the right to have a share in all the other property and assets owned by the other spouse.

By the relevant law — the Property (Rights of Spouses) Act — in order to enjoy the right to acquire shares in spousal property, you either have to be a married spouse or a common-law spouse. A common-law spouse has to be a single person who has cohabited with another single person of the opposite sex, as if this other person was in law her/his wife/husband for a period of not less that five years. The five years should expire before the termination of the cohabitation or before proceedings are filed under the Act.

You are therefore not a spouse as defined under the Act, because you have only lived with your boyfriend for four years. You did not say whether or not both of you were and are single, and whether you lived as if you were in fact man and wife. I have assumed these to be so.

The fact that you have two children does not change the requirements of the Act. So you have no basis to claim a share in any property owned by him.

I will now deal with some of the twists I mentioned earlier. You say that your boyfriend built the house in which you live with him and your children and that he did so before you started cohabiting with him. He is very efficient and businesslike to have kept all his receipts for his expenditure when constructing the house, but he will not need them to prove his case because you cannot apply for a half share. This is so firstly because you are not a spouse yet; and secondly, he owned it before you started to cohabit. The fact that you did not in any way contribute to the construction is neither here nor there.

Then, you say that the land on which he constructed the house belongs to his sister and himself as tenants-in-common. Well, you know that when someone builds a house on someone else’s land without their knowledge and consent the structure becomes attached to the land and becomes part of the land (unless it was moveable and unattached to the land). The owner(s) of the land gets the benefit of the added building.

If you were not excluded for the two reasons I stated above, and he and his sister owned the land jointly, no one, not even a spouse of many years, could successfully get a share of such a property. If you were qualified as a spouse, since they own it as tenants-in-common, you could have made a claim against his half share in the property, but bear in mind the power of the court to decide that as he had it before cohabitation, you cannot get a half share or any share at all, or a 10th or some other percentage share in the family home.

If you continue to cohabit together despite your current troubles for another year or more, you can then apply for a share as I have stated in the preceding paragraph and you could then seek an order from the court for you and the children to continue to reside in the home until a future date or until the children attain their majority or otherwise. You must continue to cohabit in order to improve your position so when you separate you qualify to acquire the legal status of a common-law spouse. In your present position, you have no rights to claim a share in property or to claim maintenance from him as his spouse, or any other order on the basis of being the mother of his children .

The only ‘right’ you have now if you separate after four years of cohabitation is that you can apply for maintenance for your children if he fails to provide support for them. If you have to do so, I advise that you also apply for custody, care and control of the children and fix the specifics of his access to them. This is all you can do now according to Jamaican law as the mother of his children and as a person who has lived with him for four years.

I hope you resolve your problems and you continue to cohabit happily and peacefully with your boyfriend. Have you tried counselling? Perhaps you should suggest this to him.

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via e-mail to allwoman@jamaicaobserver.com. We regret we cannot provide personal responses.