A common-law spouse’s rights

DEAR MRS MACAULAY,

I have been living in a common-law relationship for over 28 years. I have contributed to house payments, purchases, a daughter over 20 years old and family support. The relationship is breaking down. Do I have spousal rights to go to court to get back what I put in?

Let me provide for you what the law says about your factual circumstance. The Property (Rights of Spouses) Act defines who is a spouse in law as being “a single woman has cohabited with a single man as if she were in law his wife for a period of not less that five years, immediately preceding the institution of proceedings under this Act or the termination of cohabitation, as the case may be”. The term “single woman” used in the definition of “spouse” includes a widow or divorcée. So both the woman and the man should be single persons for at least five years before you file an application in court for a declaration that you are or have been his common-law spouse since the end of the fifth year of your cohabitation and for the over 23 years thereafter, which brings your common-law relationship to the present time. So all this means that you and he must have been single people throughout your cohabitation, living as if you and he were man and wife and all that that entails for the qualifying period of five years, and you have far more than this.

So you should obtain the services of a lawyer experienced in these types of proceedings to file your application in either the Family Court for your parish (once the value of the family home is within its jurisdiction) or to a judge of the Supreme Court in chambers. Your application should be first, for a declaration that you are the common-law spouse of the man; second, that you are entitled to one-half of the market value of the family home; third, for an order of the division of the family home; and fourthly, for consequential orders to enable you to receive your 50 per cent share. These would be that a valuation by a valuator agreed to by both of you, or failing such an agreement, as determined by the registrar of the court. Also, you or he may buy out the other’s share and within a certain fixed time, or failing this, that the property be sold on the open market and the proceeds be divided between you both and paid out accordingly as ordered. The period of times for the doing of all steps should be specified in the order and also the fact that if he refuses or neglects to sign the relevant documents to effect the disposal of the property for your share to be paid to you within the times specified, that the registrar of the Supreme Court is empowered to sign for him (or in the Family Court, the clerk of the court).

If for some reason, for instance, that the family home was constructed on family owned land, which cannot be sold, as there may have been no sub-division and there is no separate title for it, then your lawyer can assist you to work out and claim the true value of your contributions to the house payments, your purchases, and your provision of family support.

You should try to obtain the services of your lawyer quickly as you say that your relationship is breaking down, and because pursuant to the Act, you should make your application within one year (12 months) after the termination of your cohabitation. If you do not apply within the 12 months stated in the Act, you would have to apply to the court to allow your application to proceed though it was filed outside of the time prescribed. You should have a good and satisfactory reason for your delayed filing. This will mean additional expenses for this application for the extension of the time. You must try not to be late with the filing of your application.

I assume that the title of the family home is in the sole name of your spouse; if this is so, you knowing him will have to decide with your lawyer to protect your interest in the family home while you pursue your claim in court, by lodging a caveat pursuant to section 139 of the Registration of Titles Act. This you should consider carefully even though the Property (Rights of Spouses) Act provides that any transaction related to the family home needs to be done with the consent of both parties. This is to protect the spouse whose name is not on the title in case the other acts without the consent of the other.

There are provisions by which such transactions can be set aside by the court but on the application of the aggrieved party. If it cannot be set aside because, say, a sale had been concluded to someone who knew nothing of the restraint, then you can claim for your share of the proceeds. But all this can take a good long time, so it is best to protect your interest. It could be that an injunction could be an effective form of protection. You should decide about all this with and upon the legal advice of your lawyer.

So what is the short answer to your question? It is that yes, you have more than sufficient grounds for you to file your application in court for the declarations of your status as a common-law spouse and of your entitlement to one-half of the market value of the family home and for all the requisite consequential orders to enable you to obtain your one-half share as I have already mentioned above herein.

Try to find and retain your lawyer so that your application for all your declarations and orders can be filed in good time within the statutory period of 12 months of the termination of your cohabitation. I trust that I have clarified matters for you and 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 advice from your own attorney.