Common-law hubby married someone else

Dear Mrs Macaulay,

I was in a common-law relationship for over 15 years in which the union produced two children. My spouse went to Canada where he now resides, got married, and abandoned our relationship — leaving me with nothing, not even a phone call. I would just like to find out what are my entitlements under Jamaican law.

You have described yourself as a common-law spouse but in law, a court — the Family Court or Supreme Court — must decide, upon your application for a declaration, that you are indeed a common-law spouse, which will also affect consequential orders following upon such a declaration. These consequential orders, which you must also apply for (I suggest in the same application for the declaration), would include such things as custody and care and control of the children of the union; maintenance contributions for the children; declaration of your interest in the family home (if any); partition of the respective shares; declaration of interest in other property as defined in the Property (Rights of Spouses) Act; and partition of the respective shares. In other words, you must ask the court to make declarations and orders which fit the circumstances of you and your erstwhile spouse.

You must note that these applications must be made within 12 months of the termination of your cohabitation. If for good reason you could not do it within this period, then you can apply when you are doing your application to the court to extend the time within which you can apply. The court will decide whether to extend the time or not.

In order to have the grounds to apply for the declaration that you were engaged in a common-law relationship, you and the father of your children should have been single persons during the cohabitation period you claim, and you should during the period have lived as if you were man and wife for at least five years before you filed your application. If you were not single, you would not get your declaration of having been a common-law spouse.

If you do not get your declaration, your children would still be entitled to receive their father’s maintenance contribution for the necessities of their lives up to 18 years of age and, by further order applied for before their 18th birthday, for a further period to the attainment of their undergraduate degree or technical college/training qualification, up to age 23. If the child has a disability where they will not ever be able to look after themselves, then for the rest of their lives (this may require a trust being set up and a trustee or guardians being appointed) they have to be cared for.

Anyway, you should obtain the services of a lawyer to assist you. I hope that you know where this man is in Canada, which is a basic requirement. You clearly need his address in order to be able to serve him, or sufficient information about his whereabouts in Canada — and of some close family members here — to enable you to successfully apply for an order for substituted service.

All things being equal and assuming that you know where your ex-spouse is so he can be served; and that you and he were single persons who lived together as man and wife for over the 15 years plus you have postulated; and that he has property here which was your family home for the 15 plus years and/or other properties which can be the subject of a partition action; you ought to move as quickly as you can, as you have the limitation period of one year after the end of cohabitation to file your application. You must not operate on the premise that you can apply for this period to be extended; you should act as quickly as you can.

Whatever the situation about your spousal status and possible declaration, you must apply for legal custody, care and control of your children and for orders of maintenance for them. This is separate from your spousal cause of action as you need not have been in a spousal relationship for them to have the right for their father to have a shared obligation with you to maintain them. Of course if he does not appear on their birth certificates as their father then you will have to apply for declarations of paternity and also for the orders of custody, etcetera, which I have already stated.

I hope that you now have some clarity about your entitlements, if you meet the legal requirements for the status of common-law spouse and, of vital importance, in my opinion, the rights of your children and yours and their father’s obligations to protect, provide for and secure their future.

All the best wishes.

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.