Wife’s spirit unsettled about interest in family home

Dear Mrs Macaulay,

I’ve been married for almost twenty years — I’m now 43 and my husband is 46. We have two kids. My concern is, my husband and I built our house on his father’s property. His father also has a house on it as well (one lot), but the title bears only the father’s name. However, I’m not bothered by that, because my husband is an only child and his father is advanced in years. But I’m bothered in my spirit, because people do change and there’s nothing for me to prove that I’ve invested any monies into building said house. I would want to think that only a will written by my husband stating my wife status would suffice, but I’m not feeling OK with that arrangement alone. So could I still get a ‘deed of gift’ written up with my name and his as proof that the space was given to both of us and have it verified by his father? I’ve read a bit on the ‘deed of gift’, but would still prefer your professional advice on how to go handle this situation.

I note from the contents of your letter that you and your husband, some years ago in the course of your almost 20 years of marriage, and with his father’s knowledge and consent, built your family home on his father’s property. Your husband’s father is the sole registered owner of the property, and he has his own dwelling house also on the property. You say that you and your husband built your home together, but you cannot prove your monetary contribution in the construction of the home. This fact seems to be the basis of your concern and unease. You are concerned in case your husband changes and his bond with you is broken.

It is always best to have a secure title when it comes to land. In fact, both you and your husband are in a precarious position, as neither of you has title to the land you occupy. You could, of course, claim to be entitled to it under the legal principle of adverse possession. Both you and your husband should consider to secure at least that portion of the property. You see, your husband’s father may make a will and give the property or a part of it to someone else, and this would cause complications, though it would not necessarily defeat your claims of entitlement because you constructed your home openly on the premises and in the sight of all around, and have continued to occupy it. This course would, of course, require a survey diagram to be done of the portion of the land which you have occupied for 12 years or more.

In my opinion, you are worrying about something which is not a problem for you. You see, under the law — the Property (Rights of Spouses) Act — as for the family home, if something untoward happens and your circumstances change, then each spouse would be entitled to one-half share in the family home. In such circumstances neither spouse has to prove their contribution or input to the cost of construction of the home, so you must stop worrying about proving your monetary investment in the premises.

The insecurity is in the fact of having built on some other person’s land. But even so, it can be successfully established that it was done with your father-in-law’s free consent and full knowledge, and if he tries to act contrary to yours and your husband’s interest about the land you occupy, he can be successfully estopped from doing so and he would have to fully compensate you and your husband with the replacement cost of your family home and the land you occupy.

You must also remember, and stop worrying, that even if you ever need to prove that you contributed to the cost of construction, the lack of paper proof does not mean you have no proof, because your oral evidence of your contribution is acceptable evidence. The law recognises the fact that in a marriage or close union, that the parties do not generally keep records as they would in the running of a business. It would be a question of the credibility of you both as to whom the judge believes if a dispute arises. I mention this in an attempt to try to set your mind at rest about your worry.

In order for you to get your share of your family home, you do not need your husband to “give” you your share in his will. He should not in fact do so, apart from acknowledging that 50 per cent is yours and then he can deal with his own 50 per cent as he wishes, but hopefully in such a way that would not cause any disruption of relationships. You see, your share is yours by law, under the Act referred to above.

If there is any doubt about your father-in-law’s intent and future actions regarding the property, then him making a deed of gift of the land to you and your husband would be the best route to take. However again, a survey should be effected so that it can be identified with certainty in the deed, and should have the plan attached to it. Then, a sub-division would have to be applied for and obtained before you can obtain a registered title in yours and your husband’s names, as it would be taken from the original land mass in your father-in-law’s registered title.

All these are quite costly and time consuming to be done, and so you and your husband must consider the situation very carefully before you decide to act one way or the other, especially if everything is fine with you all in the family and your husband’s father.

I trust I have answered your queries and set your mind at rest and that you understand why I lean towards a gift to you and your husband from his father by a deed of gift, if you are determined to act within the lifetime of your father-in-law. Consider, though, that he may become upset about being asked to do the deed of gift.

I do not see that you really have a need to fear that when your husband inherits he will cut you out, but if you really do, and you must have a reason for feeling that way, then as you cannot act alone, you and your husband must act together and must both apply for a title after the survey and sub-division are done, and on the basis of your adverse possession of the premises for the prescriptive period of 12 years, you can proceed together.

However, please just make sure you and your husband think and plan well, and always make sure that you consult a lawyer before you act and take care not to upset your father-in-law and indeed your husband, and remember that the Act protects your interest.

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.