Common-law questions

DEAR MRS MACAULAY,

What if I was in a relationship for 10 years or more with my partner and he died and we were not married? He did not leave a will and the kids are grown and passed the age of 18. Am I entitled to anything under the present laws in Jamaica? And how do I go about sorting out what I must do if I am entitled to something?

If your spouse with whom you lived for 10 years died without leaving a last will and testament, you are indeed entitled under the laws of Jamaica to your share of his estate under the Intestates Estates and Property Charges Act. Since you say that “the kids” are grown, your spouse clearly had more than one child. In this case, pursuant to the said Act, you’re entitled to first, specific entitlements to personal chattels (moveable personal property) like vehicles, furniture, appliances etcetera, but not such things used in his business. Also, a monetary sum or 10 per cent of the net value of the estate; and interest at 10 per cent per year until the sum of money, or the 10 per cent net value, is paid to you. Then because there are children, you are entitled to one-half of the rest of the estate after your specific entitlements are calculated and secured.

The above paragraph answers your first query about whether you would, in the circumstances you stated, be entitled in law to any share from your deceased spouse’s estate. I must now mention what steps you will have to take to ensure that you can successfully obtain your share of the estate.

You must obtain the services of an attorney-at-law to apply for a declaration of your status as the deceased’s surviving spouse from the court. You should also either report his death to the Administrator General to administer the estate on yours and the children’s behalf, or apply to that official to consent for you to apply for Letters of Administration for you to administer the estate either alone or with one of his children. The lawyer you retain can do all this on your behalf.

However, before you do so, you must understand what the law requires for you to be declared the spouse of the deceased. The Act defines a “spouse” to be a single woman who has lived and cohabited with a single man as if you were in law his wife for at least five years up to the time of his death. A single woman or man includes a widow, widower or a divorcee. This means that you and the man must have been both single persons as defined in the Act whilst you were residing and cohabiting together. You must both have so lived as if you were a married couple for at least five years before his death (and even before a break-up in other circumstances).

You state you were in a relationship with him for 10 years; if this means that you were only in a visiting relationship, then you would not have been living together as if you were man and wife, in which case you will not qualify to obtain a legal declaration that you were in a common-law relationship with him and consequently you will have no share in his estate. If, however, what you refer to as a relationship falls within the definition of “spouse”, in other words, that you both were single and lived as man and wife in a common-law relationship up to just before his death, then you are entitled to obtain the shares I pointed out above, as the provisions of the Act for the spouse of a man who dies intestate, that is to say without leaving a last will and testament.

Finally, assuming that you were in a common-law union with such a man and you have applied for and obtained your declaration that you were indeed in such a union, and that you are his surviving spouse, whoever is the administrator of his estate, whether the Administrator General or you (as I mentioned above), must, having secured the estate, then distribute the legal entitlements of you and the children as the Act provides and that will be that. It must be borne in mind that the size of the estate will determine whether you and the children obtain everything the Act specifies as your respective proportions.

I hope that the situation is now clear for you, but you must retain a lawyer to act for you and do the necessary application to the court for your declaration as his spouse, so that you can obtain everything the law say is yours when your spouse dies intestate. I wish you the very best.

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 a dvice from your own attorney.