Mistress seeks help with property entitlement

Dear Mrs Macaulay,I have been living with this man for over five years.  He is yet to be divorced but was gazetted.  During this time I had a son with him and would like to know if anything should happen to him, what can I do to protect my son.We bought a house together and signed the papers as joint tenants and the beneficiaries would be my first son and the one I have with him.  Can his wife challenge me on the house?What about the car we bought together?  He also has some insurance policies with my sons’ names on it, and my name too.  Can she challenge it?My whole issue is, how can I protect my son if anything should happen to his father since he is still legally married?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.

I am afraid that even though you have lived with your son’s father for over five years, and “he has been gazetted”, this does not matter because only a legal divorce can change his status to a divorced person. When that happens, if you continue cohabiting with him after he is divorced, time will start to run towards the five years qualifying period for the legal status of common-law spouses to be achieved at the end of the period.  However, your lack of status as a common-law spouse does not adversely affect your son’s rights, interests, and entitlements.

I assume that the father’s full details appear in your son’s birth records and therefore on his birth certificate following the report of his birth by you both. If this is not the case, then you must apply to the Family Court in your parish for a declaration of paternity.

I also assume that the father is maintaining his son and so you may not wish to, and do not need to formalise his maintenance provisions by applying for legal orders to be made by the court.  

Anyway, you asked specific questions, so let me deal with them now.  You first ask a general question, that if something should happen (by which I think you mean if he dies) to your son’s father, what you can do to protect your son.  I have already answered this one above, that you must ensure that the father’s particulars are in your son’s birth records and birth certificate.  This will make any claim you may have to make on his behalf in the absence of his father assured of success and would give him the legal status to share in his father’s estate.

You are also concerned about the house you and your son’s father bought together and hold jointly and you ask whether the wife can challenge you about it.

It is very clear that since you bought it together and your name is on the title as a joint tenant, that you are fully protected.  The law of survivorship would apply and if he dies before you then you as the survivor would get the whole property.  You would merely have to note his death on the title.  The same would be the case if you die first and he survives. If the latter happens, then he must either, while noting your death on the title, join your son’s name with his as a joint tenant, or make a will immediately leaving the property to him solely.  The history of your joint ownership would protect him against the wife if she ever tries to challenge him over the property.  She certainly could not succeed in overturning his title on the only ground which is legal, which is fraud.  I would choose that he does the former and puts the son’s name on the title as a joint tenant.  But all being equal, I hope that you are the survivor, as then you will certainly ensure that your son is the beneficiary of the property.

The same would be the case for the motorcar.  As long as your name is on the title of it as a joint owner, the wife cannot trouble you over your ownership of it if he predeceases you.

And the same would be the position about you and your son being the named beneficiaries on insurance policies of his. Since he did so properly and legally and in full possession of his senses, neither the wife nor anyone else can adversely affect your claims for such policies.

In my view, overall, you do not seem to have anything to worry about with regard to yourself and your son.  I trust that I have put your concerns to rest.

All best wishes.