Estranged husband’s entitlements

Dear Mrs Macaulay,

I have been married 12 years now and have been separated from my husband for approximately two years. Our relationship had broken down and he walked out of the marriage. We have since recently agreed that it’s best to file for divorce as we both want to move on with our lives. Based on his prior behaviour, I would like to place a disclaimer in the newspapers lest I have to incur any debts/expenses of his. Can I do this prior to the divorce being finalised? Also, given that he walked out of the marriage, would he have any claim to any of my properties which I had before or after the marriage for which he did not make any contribution? I had a house before he came in, and an addition was done to the property afterwards, but not at his expense. I also bought a car after the marriage but with no contribution from him.

I must say that I cannot understand why people still persist in putting those disclaimers in the newspapers. You see, unless you and your husband together borrow money or buy a hire purchase item or jointly engage in a monetary transaction, you cannot be liable for his debts and expenses. How can you if you were not involved in the transaction or the act which gave rise to the debt? There is also the fact that you are living separate and apart, so logically, how can you be liable for his debts, when you have been living separate lives for two years? AND, please note that even if you were still living together, unless you both incurred the liability jointly, you are not and cannot be made liable for his indebtedness. So please desist from that foolishness of putting any disclaimer in the newspapers. His debts are his responsibility alone. That is that.

Apart from joint action making you jointly liable, the only other way that you can be liable is if a court order was made on a claim made against you both for a debt or other action for which you were found liable to pay damages — either you solely or you both. Then you would be liable for such judgement debts even though at the time of the judgement you were living separate and apart. For instance, if your car is registered in your sole name and you had permitted him to use it and he had an accident injuring someone and/or their vehicle, since you are the sole registered owner, you would be sued and he would be also as your servant or agent at the time he used the vehicle. If he is found to have been at fault, then you both would have the judgement made against you and for the award of damages and interest and costs to be paid by you both, or if he has nothing, then you would end up meeting the whole obligation.

You have also asked whether he would have any claim to any of your properties which you had before or after the marriage to which he made no contribution, given that he walked out of the marriage. You mention a house you had before the marriage to which an addition was done at your expense, and a car purchased by you with no contribution from him.

Firstly, the fact that he walked out of the marriage is not relevant. Since 1989, we have had ‘no fault’ divorce pursuant to the Matrimonial Causes Act. The only grounds for divorce is that the marriage has broken down irretrievably, either in both parties’ view (as in your case) or in only one party’s view and reality. A person cannot be forced to be in a marriage when to that person the marriage is dead and they want a divorce. They only need to satisfy the court that they tried counselling and it was unsuccessful or that no amount of counselling will change their minds and why.

Of course he can make a claim, but the real issue is whether he would succeed which such a claim.

If the property became your family home after your marriage, he could claim an interest in it by virtue of the Property (Rights of Spouses) Act’s presumptive of 50-50 per cent interests in the family home. However, in the very same Act you can contest this 50-50 share concept because it says that when you have owned the property before your marriage, the court can find that he is not entitled to an equal or any share, on the ground that it would be unreasonable and/or unjust in the circumstances of your particular case. As to the car, if you can show that you solely purchased it for yourself and you maintained it, you can successfully defeat any claim he may make for a share in it. So again, he or any person believing they have a right can make a claim, but the question is whether he can succeed. That is for the courts to decide on the facts provided in the course of the proceedings. This is why we have laws and courts.

There is also a limitation period for these claims. He should file within 12 months of the irretrievable breakdown of the marriage or the dissolution of your marriage unless he convinces the court that he has good reasons for the delay, and so wishes to extend the time on an application by him.

You should retain the services of an attorney whenever divorce is being contemplated, so that you are properly advised and protected should he file claims against you, which you can meaningfully oppose.

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.