My partner is still married…

DEAR MRS MACAULAY,

I have found myself in a situation for which I need your guidance/advice.

My spouse has been separated from his wife for the past five years. We have been living together for three and a half years and we now have a son who is one and a half years old. I have been concerned over the years, and we have been discussing divorce since he told me he started the process in our first year together. Now time has been passing and I have seen no evidence of a divorce. Please note, I met him after the separation.

These are my questions:

1) Since he is still married but they are separated, am I protected under the Common Law Act at all?

2) If anything happens to him, do I, as his spouse, have the right to make decisions on his behalf?

3) Does the law recognise me as his common-law spouse or as long as he is married they recognise his wife?

4) Even though they are separated, is he still responsible financially for his wife or in any other way?

5) As his spouse by law, how am I protected in any way?

I would be very grateful for any advice you can provide.

You have stated that you started living with a man after he had separated from his wife, and that they have been separated for the past five years. You also stated that you have actually been living together for three and a half years, within which you have given birth to a son, who is one and a half years old. You added that you and your partner discussed his divorce during your first year together, when he told you that he had started the divorce process, but you have been concerned since then, as you have seen no evidence of a divorce.

Well, you can go to the Supreme Court Registry and do a search from the approximate date he told you he had commenced the process to divorce his estranged wife. This will then provide you with clear evidence that he has or has not filed a petition for divorce, and has or has not obtained a decree of the dissolution of his marriage. This will enable you to discuss the topic with him from a stronger position of actual fact, which, added to the birth of your son, ought to make him put up or shut up.

You will also discover whether his is a person of integrity or not, and it will then be up to you whether you continue living with him or not.

Now let me answer your questions:-

1) Since he is still married but separated, am I protected under the Common Law Act at all?

You are not protected by any law. There is no Common Law Act in the first place, that deals with this issue. There are laws which recognise common-law unions — the Property (Rights of Spouses) Act and the Maintenance Act. However, in these Acts, the law is that you and the man must be single and must live continuously together for five years as if you were, in fact, man and wife. Short periods apart do not break up the period.

You have only lived with this man for three and a half years and he has been a married man throughout. So, you have not even commenced the first year of the required cohabitation period of five years.

You are not a spouse. You are therefore not protected by any law. Your son is though, and I hope his father’s full particulars are entered in his birth records and appear on his birth certificate. Your son is entitled to be maintained by him and to share in his estate.

2) If anything happens to him, do I, as his spouse, have the right to make decisions on his behalf?

No, you cannot do so legally. You might have to decide something as the only person present at the time, but you will not be legally entitled to do so.

3) Does the law recognise me as his common-law spouse, or, as long as he is married it recognises his wife?

No, the law does not recognise you as his spouse — I have answered this under question (1). His wife is still, in law, his wife until the marriage is terminated by the grant of a decree absolute.

4) Even though they are separated, is he still responsible financially for his wife or in any other way?

I cannot give a straight answer to this question; I will have to answer it this way. She can, as his wife, apply for maintenance, but there is no certainty that a court will grant it to her. If her circumstances change and she needs support or she would become a burden on the State, he may be ordered to provide for her. But, unless he was a co-signatory, he is not liable for any of her debts.

5) As his spouse, how am I protected in law?

If you become his spouse, and you can only start the qualifying period of cohabiting together for five years after he has obtained his decree absolute, you will have all the same rights as a legally married woman.

You would be entitled to be maintained by him under the Maintenance Act and under the Property (Rights of Spouses) Act you will be entitled to a 50 per cent share of your family home, as long as it is owned only by him or if his is a common-law tenant on the title, you will have the right to your share of his 50 per cent common-law interest.

You will also have the right to decide what treatment he should have medically, if he becomes incapable of deciding for himself, and about his funeral rites, if he dies. However, if he is still married, though separated for years and years, the wife can still turn up and take over all the decisions and control of his estate; wherein you can only then ensure that your child’s interest is protected by reporting his father’s death to the Administrator General. When you are filling out the form for the Administrator General, you must honestly insert the name and particulars of his wife and all their children, if they had any, and of course, your own.

I hope I have answered all your questions so that you can appreciate the precarious position you are in, and that you do what you must to get this man to stand by his word, which he gave you during the initial stages of your cohabitation, that he was divorcing his wife, which I am sure convinced you to start living with him. It is, however, up to you what you do, because you have been living with him, looking after him and doing what legally married wives do for and with him, including having his child; but, you do not have the certainty and security which they have.

I hope you make the right decision and he is man enough, and honest enough, to get his divorce and remove your concerns.

God bless you and your child and your spouse hopefully.

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.