Marriage, divorce and property matters

Dear Mrs Macaulay,

I was with my ex-husband for 17 years, married seven. I am 41 years old, and we have two daughters aged 17 and 11. My ex-husband lives in Canada but his father died leaving a piece of property which was given to him as the only son. There was a one bedroom structure on the property which was barely liveable. I renovated the one bedroom and made it somewhat comfortable to dwell in, but even then he refused to stay in it. We decided we were going to break it down and build something more modern, which we did.

His mother and sisters did not have a problem with us building. The house was completed (six bedrooms, five bathrooms, kitchen, living, dining, washroom and garage) and I’ve lived there ever since. Whenever he would visit we’d spend our time in the house with the children.

He cheated and I found out and sent him the photos of his infidelities. He never responded, he just came to the house while I was away and moved most of his things out. He tarnished my name all over to anyone who would listen, so I went to the Family Court and filed for custody of my two children and for partition of the property. He came to court approximately three times, but I was there always. We both got joint custody with care and protection of the children and he was to pay me for my half of the house. During the first two years he did not do anything for the children even though he was always in the community.

He remarried without me getting any form of divorce papers and when I asked he said I should file my own like he did his. I thought it weird because if we were indeed divorced, why would he want to keep the documents from me? He eventually gave me a copy of a divorce order he filed back in Canada but there was some information cut off, but his lawyer’s information was on the document so I texted her and got a copy of the original document.

I found that he’d given them an address in Miami as mine, and his now wife signed the documents pretending to be me. Long story short, his family has sided with him to now say that our family home could not be the family home as his father died leaving the property to his mother and siblings. I am not trying to take the property, I need half of the house that we built together. I have most of the receipts that were used to purchase the material and I had made note of most of the transactions from start to end. He hired a lawyer who filed to desist or vary the order that was previously made by the judge. I also had to retain a lawyer but she’s not effective, and I am not sure what else to do as this has been dragging on since 2018 and we can’t seem to reach anywhere.

What are my options? I do own properties of my own that he has not contributed to.

The first thing which I must suggest to you is that if you are not satisfied with your current lawyer, you have the right to terminate her services on that basis and find and retain another lawyer who is more knowledgeable and experienced in the practice of family law and family property law. You can check with the officers in the Family Court to give you the names of some lawyers who fall into the category I have suggested.

Most of what you’ve said is confusing. The order for joint custody is fine. This is done more often than not. However, the person with whom the children would be living is the one who gets the order for the care and control (not protection) of the children, and that would be you alone and not jointly with him. It would have been ordered that he would have access and how this would be achieved. l also do not understand why you seem not to have applied for him to contribute to the maintenance of the children. The clerk of court assisting you should have advised you to do so, especially as you applied for a declaration of your one-half interest in the family home. If you did not apply for maintenance for your daughters, you must do so. They have a right to obtain this from their father and you should ensure that they obtain this.

You say that though the court ordered that he should pay you for your half of the house, that he got a lawyer who filed to desist or vary the order made in your favour. This I do not follow. Are you saying that his lawyer filed an appeal in the Court of Appea, or that he filed an application for the Family Court to stay execution and for a variation of your order?

You also say that your ex-husband’s mother and siblings are, at this stage, saying that the home is not your family home. Well, you see why I say that you need to do something quickly to ensure that you have effective legal representation? You see, your lawyer should, (it seems to me) plead and rely on the principles of estoppel and recent invention and apply for his application to be struck out. His mother and siblings should have pleaded their objection that it was not your family home during the hearing of the application which you filed for your half share. They have known what was going on all along and made no objection. You and your children are still living in your home. It is too late now for them to take this stance.

Your ex should also have objected during his answer in his defence to your application for your half share. He clearly did not, and if he did, the judge did not believe him and found against him and in your favour.

You must ensure that you have certified copies of the orders made by the judge on your applications and any made following what his lawyer filed on his behalf. I hope that you actually have a copy of his application as you do not seem to understand what was filed on his behalf.

On the matter of his ‘divorce’, which you have misgivings about, I am sure that you must know that such a divorce is null and void and that he and his ‘wife’ could be charged and prosecuted for what they did. Did you bring these matters to the attention of his lawyer and the Canadian judicial family court authorities? I hope you did, but the decision is yours to make.

I hope that you see from my comments on the contents of your letter, why I say that you need good legal representation. I have had to assume too many things and you need proper legal advice and action following your detailed instructions to your lawyer with all the facts and dates and times.

Please do what you should and ensure that your legal matters are properly dealt with and concluded for you and your daughters.

All 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 advice from your own attorney.