US wife learns husband had common-law spouse

Dear Mrs Macaulay,

I am a US citizen and I am a petitioner for my husband. At the interview with US Citizenship and Immigration Services (USCIS), I found out my husband put on his visa application that he had a common-law marriage, which I did not know about.

Does this mean I am his second wife? Is there any way to find out if they are still considered married? He also has lived with me for over a year in the USA, and we have been married for a year.

It is most unfortunate that you only found out about your husband’s common-law relationship at such a late stage, and well after your marriage. It seems to me that you ought to make it clear now, since you did not before marriage, that you do not appreciate that he kept you in the dark about this union. It clearly misled you about what kind of relationships he had had before you and your marriage.

You were entitled to know the truth, not about every relationship, but certainly a common-law union which denotes a relationship of many years.

Anyway, you seem to have some misconceptions about common-law relationships in Jamaica. They are not “marriages”, as no legal ceremony is needed for such unions. Under about four Jamaican laws, two people can be recognised as “common-law spouses” if they are single and have been living together as if they were man and wife continuously, (short periods apart do not affect the continuity of the living together period for calculation purposes), for a period of five years. They are then described as “common-law spouses”.

If one or both need legal recognition of their union, one or both of them can apply to the court for a declaration that they, having lived together as man and wife for a minimum of five years and being single throughout the period, are in law “common-law spouses”.

With such a declaration made by the court, each of them would be entitled to claim maintenance from the other, as a common-law spouse, and a share in the other’s estate if they die intestate. If the other made a will and made no provision for their spouse, the surviving spouse — if they were dependant on the deceased for support during his or her lifetime — can apply to the court for an order that such maintenance, as he or she needs, be paid out of the deceased person’s estate for such period of time as the court orders and in such sum as is ordered.

So there is no way and nowhere that you can find out if his relationship with the woman is actually at an end, except from him. Why, for goodness sake, have you not asked him? Since you have got married and have lived with him for a year, it would seem that it is at an end, but only he can say and it would be up to you, if you believe what he says or not, in the circumstances.

You ought to ascertain from him whether he had any children with the woman. If he did, his being married to you would not release him from his legal obligation to contribute to their maintenance until they attain their majority and sometimes even beyond, until they obtain their undergraduate qualifications.

You asked: Does this mean I am his second wife? The short and direct answer to this question is a resounding, “No”, because, in law, she was not a wife.

As a common-law spouse, certain laws give to such spouses certain rights and obligations, which legally married individuals have as a matter of course. There is no legal step required for its termination. They may both decide to end it or one of them can merely move out and end the relationship, though certain obligations may follow him or her, as I have mentioned above.

This is why you must have a frank and honest talk with your husband. It is up to you to find out from him, and most importantly you must ascertain why he did not tell you about this relationship, which you only found out about at his interview.

Marriages are difficult to begin with and must be nurtured by both parties, but when it is based on a serious lack of communication, you must seek answers as soon as possible — otherwise your questions and doubts about his veracity may adversely affect your marriage. So ask him and talk together — make this a habit.

I wish you the very best and hope I have clarified the relationship of common-law spouses for you pursuant to the laws of Jamaica.

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.