What are my rights with my married baby father?
Dear Mrs Macaulay,I am in a confused state and would like some information from you in an effort to see things more clearly. I have been in a relationship for 13 years and I have a six-year-old from this union. We have lived together for 10 of the 13 years that we have been together. There are a lot of questions I would love to ask you, but the most important one is, even though we have been together for that period of time he is still legally married to someone else. What claims do I have, if any?
The short, clear and direct answer to your important question is that you have no right to make any claims of him and you have no entitlements in law yourself despite the years you have lived together. You are not a ‘spouse’ in law.
The only claim you can make against him is for the maintenance of your six-year-old child.
A relationship like yours is not recognised as a common-law union because he is still legally married to another person. For a common-law union to exist, both parties must be unmarried, that is to say, either a spinster and bachelor; or divorced; or widowed. They must also cohabit together as if they are husband and wife for a continuous period of five years before their relationship is recognised as a common-law union.
The Property (Rights of Spouses) Act 2004 and the Maintenance Act 2004 define a “spouse” as a single woman or a single man who has cohabited with a single man or single woman as if he or she were in law his or her husband or wife for a period of not less than five years, immediately preceding the filing of any applications under these Acts, or five years have passed before the termination of their cohabitation, when again either person can file applications. It is then added for greater clarity that the ‘single woman’ and ‘single man’ for the definition of ‘spouse’ can refer to ‘widow’ or ‘widower’, or a ‘divorcee’.
So your circumstances exclude you completely from qualifying as a ‘spouse’, a qualification you need in order to be deemed to be entitled to make applications on your own behalf under these Acts.
The same definition/qualification does apply, for instance, to the Intestates Estates and Property Charges Act 1937 with its amendments, which directs the distribution of the estates of persons who die intestate, that is, without leaving a will, or one which is not legally effective to the surviving spouse and any children, if any, or if there is no spouse or children, then surviving parents, and failing these, then to other relatives. If there is a surviving spouse with or without children, then the parents or any other relatives do not come into the picture. But for this Act, the surviving ‘spouse’ must obtain a declaration from the court that he or she is indeed a surviving spouse in order to be able to apply to administer the estate and to inherit the proportions directed in the Act to be the spouse’s shares.
Because your partner is still married, you cannot apply for maintenance from him or for a share in his property unless your name is on any title to property as a joint or a tenant-in-common. You are, of course, entitled to anything which he purchased for you and for your use, and any gifts which he has given to you.
If he obtains his divorce and it has been long enough, and you continue to live together, then the five years will start to run from the day after his decree absolute is granted. Then after five years have passed, you will be his ‘spouse’ and entitled to apply for maintenance and/or a share in property on a breakdown of your union, or for your share in his estate if he dies before you. For the latter, you will have to prove the five years’ minimum cohabitation on an application for a declaration that you were his ‘spouse’ up to his death.
As I had mentioned at the beginning, you can, as the mother of his child, apply for maintenance for that child and also for custody, care and control.
The child’s entitlement to be cared for by the parents is not conditional on the relationship being a spousal one. The child’s rights and best interests are paramount, even if your partner was still residing in the matrimonial home with his wife.
I hope I have made the situation clear to you.
It is advisable for both parties to ensure that they are ‘single’ before they commence cohabiting, because if one is still married, they cannot be living as if they are in law husband and wife when there is in fact a living wife or husband.
Good 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. 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.
