How do I protect my assets in a cohabiting relationship?

DEAR MRS MACAULAY,

I am a Canadian-American, here in Jamaica on a work permit. I am two years into a cohabiting relationship with my partner here in Jamaica. I am the primary support for the household and pay all the bills — utilities, food, entertainment, etc, including his share of his child’s expenses. I have done all this since the beginning.

I have personal assets in the United States and am co-owner of property recently inherited in Canada. My siblings have asked me to take steps to protect this asset from any claims resulting from my cohabitation in Jamaica. Additionally, I have purchased five acres in Jamaica and am building an agro tourism farm/Airbnb and have established an LLC. I have provided all of the start-up capital and am currently the only financial backer in this endeavour. However, my partner is a minority shareholder in the company and has worked on the project since inception along with me.

I would like to draw up a cohabitation prenuptial agreement that fairly provides for him, but wholly protects my assets/children’s inheritance from the “equal share” laws in Jamaica. How do I do this so that my international assets as well as those in Jamaica are protected, and what laws would be applicable?

As you and your partner have not cohabited for five years as if you are in law husband and wife, you are not common-law spouses as yet. You both must be single persons from the inception of your cohabitation and throughout the five-year period of cohabitation. This is to say, spinster/bachelor or divorcées, or widow/widower.

The fact that you are only two years in does not mean that you cannot make an agreement about the ownership and division of your property, which you currently own and which you may own in the future. The Property (Rights of Spouses) Act makes provision for such agreements to be made by spouses or two people contemplating marriage to each other, or cohabiting together, for you to be able to make clear your ownership and the division of your properties. Your agreement must clearly identify the property and define the share to which you and he shall be entitled to, upon separation or termination of your cohabitation, and even upon your legal marriage to each other and the dissolution of such a marriage.

The share you provide for him is entirely up to you to decide and discuss together and obtain his agreement to it. I note that you have already given him a minority share in your property. The Act also provides that the agreement must also provide a calculation of the share and the method by which the property or a part of it may be divided between you both.

The Act also provides that the agreement must be in writing and that you must have your own lawyer and he must have his, and that you must both obtain independent legal advice before you both sign the agreement. Your respective lawyers must, on the agreement, certify that the meaning and implications of the agreement have been explained to their respective clients and that they stated that they understood and agreed with the contents.

The agreement must be signed by both of you — if here in Jamaica in the presence of a Justice of the Peace or an attorney-at-law, or a Notary Public for use abroad.

So you must retain the services of a lawyer to act on your behalf and to draw up the agreement in line with your a instructions. You should discuss your decision with your partner, and what you propose to give to him, and obtain his agreement, which can be by way of a note on two draft copies of the agreement. It should state that after your discussions he understands your purpose and the implications, and he agrees with the agreement. He should sign and date the copies. You should give him a copy to show to his lawyer and you take your copy to yours, so that the final engrossed copies can be prepared by your lawyer, for your signatures and the respective certificates of your respective lawyers.

The applicable law for the agreement above, shall be enforceable as the Property (Rights of Spouses) Act provides. To cover your inherited co-owned property interest in Canada, the original copies should also be signed before and witnessed by a Notary Public. Or your lawyer may determine that it is advisable to also do a separate agreement for your Canadian property interest, as the provisions of the Property (Rights of Spouses) Act are not enforceable in Canada and so must be in keeping with Canadian legal provisions for such agreements.

Finally, I must enjoin you to obtain your lawyer and do a full consultation and give him/her full and clear instructions for your agreement or agreements to be drafted. You must remember that if your partner refuses the provisions you wish to make for him, you must and should consider and act boldly to terminate your cohabitation before the period of five years is reached, which would ensure that he cannot obtain a declaration (which is needed) from the court that he is your common-law spouse, in order to claim a share of any of your properties.

I however hope that he would agree to the provision you make for him and that you can amicably, with him, protect your properties.

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.