Investing with a common-law spouse

Q: Dear Mrs Macaulay,

I have been in a relationship with my child’s father for almost four years now and he has bought a piece of land. With this land he has obtained a title and has started to build on it. I have some savings and we have decided to use it to build together but I am not 100 per cent convinced that this is a good idea since we are not married. I am scared that if push comes to shove I will have no rights to the property. Is this a good idea to put my hard-earned money into this building project?

A: I have read your letter with a sense of satisfaction because it makes it abundantly clear that you are a prudent person for seeking clarity before you put your money into a venture when you have no visible assurance of it being a safe investment.

You say you and your baby’s father, who bought land and registered it in his sole name, have been in a relationship for almost four years. You have not stated whether you live together or not, and whether each of you is a single person. If you have been living continuously together for almost four years and you are each single people, and if you live as if you and he are man and wife, then when you have lived in this way for five years, you will be recognised in fact and in law as ‘common law spouses’. If you have not been living together, then you are merely boyfriend and girlfriend who have a child together.

If you become or are in fact ‘common law spouses’, the Family Property (Rights of Spouses) Act provides that the ‘family home’ is the house which one or both of you own and it is used generally (habitually) by you both or from time to time as the only or the main family residence and that the buildings/structures on the land are completely or mainly used for the needs of the members of the household.

If you are single and have lived together or you live together as I said above for five years as if you are man and wife in premises which is owned by him, and even if he is the only one registered on the title as sole owner, you would be entitled to a one-half share in the ‘family home’. If this is the case, it would be perfectly safe for you to invest your savings or a part of them in continuing the construction, even on the basis of the fact that you and he agree and intend for the house to be used by you both and your child as your family home.

On this basis, because the law is clear, you need not have everything in writing to the effect that because you put your savings into the construction, if your relationship breaks down, you would be entitled to your half share. As I said the law has taken care of this for you.

However, in the same Act, there is provision for you both to enter into an agreement if you both wish to the effect that as you have been living together for four plus years and you intend to continue to do so, and you intend to invest your savings in the ongoing construction on the land registered in his name (give the volume and folio number of his title), and as it is to be your family home, that he, your child’s father holds and will hold one-half of the interest in the said property in trust for you and that in the event of your relationship breaking down, that you would be entitled to one-half of the market value of the entire property at that date, and that either of you may then purchase the other’s one-half share or sell the whole property in the open market and divide the net proceeds between you.

Such an agreement would be made in contemplation of your cohabiting together as common-law spouses. Thus, instead of leaving the sorting out of your interests for the court to apply the provisions of the Act, you both by the agreement yourselves would be exercising your rights to decide how you wish your existing and future property interests to be owned and divided. You can in such an agreement also agree that you both hold your respective interests in the said property and/or any other in trust for your child and/or any other children you may later have.

But as I said, you need not have an agreement as the provisions of the Act will protect your interests. In fact, even if you have an agreement, if your relationship breaks down one of you may take the position that it is not fair to them and should not be enforced as, for example, they were coerced into signing it. Then the court would look into the matter and decide whether it is enforceable or not. If there is a break-up and he seeks to put you out of the house saying the property is his, you must go straight away or at least within a year of your break-up to a lawyer to file an application under the same Family Property (Rights of Spouses) Act to protect your rights and obtain your one-half share in the property.

If you have not been cohabiting, then you can still decide to invest in the construction but get him to sign even a simple note saying that you are investing in the construction and as a result he certifies that you are entitled to an interest in the premises (which must be identified either by its address or certificate of title numbers) and that he holds the said interest in trust for you. You and he should then sign it before a Justice of the Peace, if possible. If not, have someone trustworthy who is likely to be around for a long time, like a teacher or pastor or lawyer, witness the signatures for you. Then you should also keep your receipts for every cent you spend on the construction. Make sure that they are issued in your name and have the exact sum(s), the date and the purpose for the expenditure or the items that were purchased. If you give the monies to him, you must get him to sign a full and clear receipt with the date thereon, the exact sum of money, and for what purpose he received the monies from you.

The suggestions in the above paragraph are precautionary in case at a later date he seeks to deny that you ever invested your savings in the construction. Believe me, this happens too often and it would save a lot of trouble if wives, spouses, girlfriends or any other persons make the effort to protect their interest in this way.

So, my dear, before you invest your hard earned money in your child’s father’s land, find out from him whether he would sign an agreement to protect your interest in the property in exchange for your investment in it and that it will be the family home for you all, and if he would sign a full and detailed receipt for the monies you give him to purchase materials or pay for labour for the construction.

If he or you are married but separated, you cannot become spouses unless you get divorced and live together from the date the divorce becomes final, continuously (discounting short periods apart), for five years as if you and he were man and wife. So since you have not disclosed the status of either of you to me, you will have to work out what would best apply to your circumstances from what I have stated above and decide which route you wish to follow.

Please continue to be prudent but also know that you must, once you have done what you must to protect your interests, invest in your committed relationship as your spouse or husband must also do and then you both can build your lives together as true partners who mutually respect each other. I wish you the best of luck.

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.

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.