Property issues with ex and common-law wives

DEAR MRS MACAULAY,

Here’s a situation: A man who bought a home with his own money included his wife on the title as joint tenants. The wife did not contribute to any mortgage payments. Soon after, the wife left him by going to another country and eventually they divorced. He gazetted her in the local newspaper. She had not been in the country for many years at this point, and had not been on the property (over 40 years) during this time. Neither had she even attempted to maintain the property. Essentially she has given up all interest in the property but apparently wants the children from the marriage who also live overseas to get her share should the man pass.

The man met another woman and they live as common-law spouses. They have been together for almost 20 years. For the last five years the man has been ill and the common-law wife has been his sole caregiver. The children from his previous marriage will not help with his medical costs or even daily living, only on the condition that the man gives them sole interest in the property which he declined to do since he believes the common-law spouse should be entitled to something as well.

The common-law wife is now fully overwhelmed with caring for him and wants compensation; however, it would be a tricky legal process. If she chooses to leave while he is still alive, she will potentially forfeit her interest in the property. She would like the property to be sold so that she can receive what is due to her and put the man in a nursing home to get the attention he needs. However, even though he is divorced the house is still in joint tenancy with the ex-wife. The children will not share the ex-wife’s address so that an execution of removal can be done. The man is also in no condition to do any such proceeding and is solely dependent on the common-law wife.

Is there a way for the former wife to be removed from the title without him knowing her address in the country she is in? If this happens, can the common-law wife act as an executor and sell the property on behalf of the man? Or should the common-law wife continue to be sole caregiver for the man and property and go about achieving her compensation another way?

The circumstances you have related are very incomprehensible and unfortunate. This is because so many persons leave their affairs to become unprotected and unsustainable in law. I direct this comment to the man as well as to his common-law spouse. From what you say they have lived together as if they were, in law, man and wife for over 20 years, meeting the legal requirements of the status of common-law spouses five years after they commenced living as such, as the man and his wife had divorced before this.

Yet the man did nothing to protect the woman he chose to spend his life with. He was very remiss in neglecting to rectify the title to the property. Even if he had only removed his ex-wife as a joint tenant and had his name as the sole proprietor of the property, this would have given his spouse proper protection to inherit the full share the law provides for spouses and wives on an intestacy if there is no will. But he did nothing and now he is sick. But if he can still understand what he can do and what he says it is not too late for him to do something.

The spouse herself was also neglectful of her rights. Why she just continued to look after him and not get him to put the title in his sole name and make a will providing for her future was irresponsible, though more understandable in her case than his own inaction.

The answer to your first question is a resounding yes — if the man can understand what he is doing and can sign to the necessary documents. The services of a good lawyer must, however, be obtained, who must act quickly to obtain a full and detailed statement from the man as to his acquisition of the property and how he paid for it, why he put his ex-wife’s name on the title with him as a joint tenant, why he wants her off, and what he wants done with the interests in the property or its proceeds if he wishes it to be sold. He can even go further and state that he wants a portion of the proceeds to be paid over to his common-law spouse and a portion held in trust for his maintenance in a nursing home and what should be done with any remaining monies after his death. This statement should be signed by him properly as required by the Civil Procedure Rules and the Evidence Act, so that it can be used in the proceedings filed on his behalf for a declaration that the property belongs to him solely and for an order that the ex-wife’s name be removed by the Registrar of Titles from the title and either put in his sole name or the joint names of himself and his common-law spouse. It can also be used in any other or further proceedings, even if he dies in the course of any and all of the proceedings.

The application can be drawn up for him and his affidavit in support, and filed with an application for substituted service through advertisements in the popular newspapers in the city or town where the ex resides abroad. It can also be placed in our local overseas papers.

The lawyer will ensure that copies of the adverts are collected and produced to be attached to an affidavit in proof of service and filed in support of the application.

The common-law spouse can only be his executrix if he so designates her in his will, and after he dies and she is so appointed on probate of the will being granted.

It is my view that my first suggestion is the best course to take — that is for his statement to be taken and properly executed for full use in all proceedings filed, which must be done quickly.

The common-law spouse should not just go on and expect that she will get ‘compensation’ later. In fact, when the work is being done for the court applications which I have suggested, he can be assisted to make his will in which he should mention the applications and what should be done with his estate after the resolution of his application, and he can name his common-law spouse as the executrix of his will and say how he wishes to distribute the estate.

She and he must act quickly, and I mean NOW.

I hope I have assisted and wish them luck and quick action.

I take this opportunity to wish my editor, the staff of All Woman, and all my readers, a very happy Christmas and wonderful contentment in the New Year.

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.