Dad wants to put mom out of house
DEAR MRS MACAULAY,
I recently turned 20 and attend a skills development college. My parents have been together for over 15 years. My mother is not working, but my father is.
I left school from I was 16 because my father told me he would no longer pay for my school fees, so I walked out of high school. I did a lot of things to send myself to school and I am still struggling and trying. My father tells my mother every day to come out of his house. He also tells me that everyday.
Bear in mind she still cooks for him, washes for him, and presses his clothes to go to work. He has found another woman and it has been bothering me for years, because he abandoned me for his new family. I would at least like my mother to get out of this house. This is a common-law relationship. Is there anything that could be done?
She has nothing at all and I am still in school. I did not get to do my Caribbean Examinations Council (CXC) exams because I left school, but I will be doing them this year. What can I do about my mother’s situation?
In a great number of circumstances, both parents work out of the home as employees or independent business operators or independent professionals. Then you have some couples wherein only one of them earns their emoluments in one of the ways aforementioned, while the other works within the home with child care, and doing all household duties in the home and for the family. This latter spouse’s position was in the early part of the 2000s, in fact, first in 2003, changed because of Jamaica’s agreement at the Beijing 4th World Conference on Women, to legislate the agreements in the Beijing Declaration and the Plan of Action, and one of those is for all the countries to pass laws to quantify women’s services of housekeeping, child caring or other domestic services which are performed by a spouse for the family, as if the spouse was doing these services in a paid position and was contributing such earnings to the family’s support. In other words, this means that the work of spouses, who are stay-at-home mothers and wives within the home, must be quantified in monetary terms and they should be given their due value.
This situation was dealt with by Jamaica in embodying the required provisions giving a monetary value to housework and caring for family members in the Maintenance Act 2003 and the Property (Rights of Spouses) Act 2004. So what does it mean for you and your mother?
It means, firstly, that your mother was doing what is termed sitting on her rights, and yours also. This is because she did nothing to secure for you what you were legally entitled to obtain as a child from your father for your proper development. He had a legal duty to provide maintenance for all your necessities at least up to your 18th birthday, and if applied for before you reached this age, it could have been extended by court order up to when you obtain your undergraduate degree, or the age of 23 years, whichever is sooner. So he should not have been permitted to just stop and refuse to continue paying your school fees and providing other educational necessities. She should have gone to the Family Court for the parish in which you reside and made an application for an order for your maintenance at the time when he stated his refusal when you were 16 years old.
At the same time, your mother should also have made an application for maintenance for herself if he was not providing at all, or properly, as he used to do. She could have done yours and hers at the same time. She seems to be qualified to be legally declared as his common-law spouse, and she can still apply for this even after their cohabitation ends, but this should be done within a year after their cohabitation ends. She can, however, apply for this time to be extended, but she must have an explanation why she delayed making it, if she has. This point is not clear to me, as you merely refer to her doing the usual spousal chores for him and not whether they are still intimate sometimes.
She should go to the Family Court and make the application for the declaration and for her maintenance now. She should work out how much she needs to live by herself or away from the family home. She should find out how much to rent a place, pay for utilities there, what sums are needed to purchase food, toiletries, cleaning materials, clothing, footwear, etcetera. She should also ask for him to provide for her medical costs and optical and dental if she needs these. This application would not be for a contribution, but for the provision of everything she needs to continue to live in the manner and environment she is accustomed to live in. If she wishes to do some training in order to join the job market, she should ask for this and provide all the facts and costs relating to this.
Her application, if made in the Family Court, is done free of charge and she does not need to have a lawyer, even though this is always prudent. Or, she can retain a lawyer to make her applications in the Supreme Court, in which she must apply for a declaration that she is, or was, the common-law spouse of your father.
She can also, at the same time, apply for a declaration that she is entitled to 50 per cent of the family home, one-half of the monies in his bank account(s); half of all debts owed to him; half of his investments; and, if he has any, half of his motor vehicle(s) and his pension; and her half share of the household furniture, appliances, crockery, cutlery, pots and pans, etcetera, and for all the necessary consequential orders to enable her to actually obtain and receive what the court orders as being due to her. By the way, if the value of the family home is above the value which is within the Family Court’s jurisdiction, then she would have to submit her application for the division and partition of her interest in the family home and other assets in the Supreme Court. She would be advised of this when she goes there and speaks with the clerk of court.
I must also mention that if she is being abused by your father in any way, she should also apply for a protection and an occupation and ancillary orders under the Domestic Violence Act, also in the Family Court. The occupation order means that she can obtain an order for your father to leave the house while she occupies it. The ancillary one would enable her to continue to use the contents of the house. Her maintenance application should also be heard and the order made at the same time, as provision must be made for her. If he is making mortgage payments, the court must order him to continue making the instalment payments. Or, the court could order that they can continue to occupy different parts of the house and that he cannot put her out until the matter of their respective shares in the family home is decided.
It is now up to your mother to decide whether she is going to seek the legal protections and benefits of the law in the Acts I have mentioned herein and act proactively through going to a lawyer or to the Family Court and pursue the applications. Please assist your mother, take her to the Family Court or to a lawyer to pursue these applications in court as the laws provide. It is for her to use them now to help herself and free herself of the indignity of being repeatedly told to leave the house.
This latter, by the way, can ground her application under the Domestic Violence Act as it must cause deep annoyance to her and gravely upset her emotionally and psychologically. Help your mother further, as you have started to do by writing this letter to me, by getting her to use the laws which were passed to assist and protect people who find themselves in her painful and difficult position.
I wish you and your mother the courage and determination to pursue her legal claims, and a better and bright future.
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.
