He wants the house in his name only – while I pay the mortgage

DEAR MRS MACAULAY,

My partner and I have been together for two years. We are not married and have not had that conversation in a while. We also do not have children together.

We have been talking about applying for a NHT scheme house as soon as one becomes available (single unit for low income earners). He has the lower income. I suggested that we apply together, as I am aware that the more points you have, the better your chances are. He disagreed and suggested that he apply alone and said that I would then make the monthly payments. He bases this on the fact that he makes less money and since it is a house for low income earners, he’d stand a better chance alone.

I can’t agree with that, as it seems unreasonable to me. I feel as though such an action would be a mistake, as the property would be only his legally and my options for recourse would be very small, should we decide to go our separate ways or should anything else happen.

Am I being unreasonable and small-minded in not wanting him to be the only applicant and ‘owner’, and I the financier? Does paying the mortgage mean that I am a joint owner? If push comes to shove, will the property be split 50/50 or would I just be entitled to what I paid?

I feel it is an argument that may end our relationship, and I care very deeply for him and love what we have together.

Could you advise us on the best way forward, please?

I cannot tell you how relieved I am that you did not just accede to your partner’s suggestion that he alone should apply for the NHT scheme house and that you make monthly payments, instead of pursuing your original discussion that you both apply together. You were correct in being reluctant to agree with his suggestion, and with your conclusion that the property would be solely his in law and in fact.

You have not yet cohabited together as if you were in law man and wife for a period of not less than five years, so you are not in law or fact even a common-law couple. If you had been together for the qualifying period of five years, then you both would be entitled in law to one-half of your ‘family home’ (as the purchase would be) but alas, at this point in your relationship you do not have that legal protection.

I should say that in my long experience with family matters, the majority of relationships such as yours, be they between married or common-law couples, do not last when the woman is the greater earner. You have been in your relationship for only two years, and your partner is already asking you to act for his best financial interest, and against your own. This would be sowing the first seed of dissent between you, which would lead to disputes, even without conscious intent by either of you. I will not say more on this aspect as your own instincts came into play despite your emotional commitment to him. Let me instead just answer your questions now, so that you will have at hand the legal reasons to base your ultimate decision.

You have asked whether you are being unreasonable for not wanting him to be the sole applicant and owner of the property while you solely make the payments for it. The short and immediate answer to this is a resounding “no”. It is because too many women were left destitute after working hard and paying for properties in their husbands’ and partners’ sole names in years gone by, that for over 30 years the situation was brought to the attention of the various Governments to pass legislation for a just distribution of property interests between spouses — married or in common-law relationships. During disputes, and these arise in the happiest of relationships, the mantra of the man, whose sole name is on the title, would always be, “get out of my house”. Their “home” stops being theirs, and becomes his. He would ignore all the payments and contributions made by his spouse throughout the years. It took over 30 years of lobbying by the Women’s Rights Movement for the Property (Rights of Spouses) Act to be passed in 2004. This Act defines spouses to include those single persons who cohabit together for not less than five years before either the filing of proceedings under the Act or the termination of cohabitation. Then in 2005 the Maintenance Act was also passed in which common-law unions were also recognised.

You also ask whether you paying the mortgage would mean that you are a joint owner, and again the answer is no. The only direct way you can be a joint owner, is if you both purchase the property together and are so registered on the title. You could, of course, enter into a property agreement about the ownership and division of the property you are planning to purchase and any other future ones you may acquire. In such an agreement you both can clearly state that with regard to the property to be purchased, that though it shall be in his sole name, the property shall belong to you both jointly in a 50-50 proportion to each of you, or any other percentage, in the event of the termination of your relationship, or that at such time that there be a calculation of your respective shares based on your respective financial inputs for the acquisition and retention of the premises.

These agreements must follow the strict conditions contained in the Act. It requires that each of you must have independent legal advice before the signing of the agreement, and these lawyers must certify that this was done on the agreement. The Act in fact says that these agreements must be in writing. Such agreements shall not be enforceable if the requirements are not complied with, or if the court finds that it would be unjust to permit the terms to be enforced. The route of having such an agreement done before purchase will put you both to find the additional expense to have it done and meet all the legal requirements.

You also ask if in the final analysis, the property would be split 50-50, or whether you would only be entitled to what you paid. You will not be entitled to 50-50 if the property is in his sole name, if your relationship of cohabitation does not reach the “not less than five years” qualifier before termination, and without a contentious court action based on your claim that you are entitled to this. And the court may or may not agree with your claim.

You see, if you, knowing the effect of his sole name being on the title as owner, nevertheless, because of how you feel about him, decided to make the payments so your relationship would continue, the judge may find that in such circumstances your payments were a gift to him and then you will get nothing. Or, the judge may, if you are lucky, find that you acted under duress in that you were forced to make the monthly payments — but I fear that this latter is unlikely.

Your good sense has told you what to do and that you cannot bet on any certainty that your relationship will continue forever. You say that you are not married and that you have not had that conversation in a while. This must tell you something. The fact that you do not have children has no relevance on the issue of property interests.

So what do I think is the best way forward for you and your partner? In my opinion, you should both purchase the property together and have it registered in your joint names as joint owners. You both know and would realise that your contribution would be much greater than your partner’s and that despite this you would only be entitled to 50 per cent of the value of the property if your relationship is terminated and you have to go your separate ways. I hope this does not happen and that you and your partner are the exception to the usual break-up when the woman earns more than the man. I am sure that you will continue to be careful and prudent and protect your own interests in the circumstances of your partner clearly being reluctant to make your union a legal one. If he is an exception and is sincere, he would agree to a joint purchase and not put you in the situation of having no legal entitlement to any portion of the property, despite your greater contribution.

Please protect yourself and ensure that your name is on the title. I hope that I have clarified the position for you and that you would act accordingly and protect yourself and your relationship.

All the very best to you both.

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.