Spousal maintenance and other entitlements
Dear Mrs Macaulay, I was a common-law wife for 16 years, and we got married a year ago. I have been a stay-at-home mom since 2016 due to illness. We have a house and land in both our names and that of our three children. If we split, would I be entitled to spousal support, and if yes, for how long? Can I claim for half of the land?
From your sparse letter, I assume that before 2016 you used to work out of the home and contributed to the expenses of the household and to maintaining the children and also did housework. Then after 2016 you contributed by doing housework as best you could because of your illness.
You stated that you and your husband have property. This I understand to mean that your family amounting to five people are the owners of your house and land, and all your names appear on the conveyance or registered title of the property. You, however, did not say how the interest in the land is held by you all, whether it is as joint tenants or as tenants-in-common.
But whether it is as joint tenants or tenants-in-common, the answer to your question about whether you can claim half of the land is a resounding NO! All of you have a one-fifth interest in the land and all that is attached to the land, as I assume your house is indeed attached to the land as is usual these days. The only difference between the two types of holding of land interests is that if you are all joint tenants, then you all hold your interests together in the whole property, and when one dies, the survivors own the whole together and so on for each death until only one survivor is left, and then that person owns the whole and can dispose of it as he or she wishes. This is what happens when the joint tenancy/ownership is kept this way until it goes to a sole survivor.
If however the joint ownership is severed upon the agreement of you all, or upon an application of one or more of you five, then you all will become tenants-in-common. This means that you would each hold your one-fifth shares individually, and so any one of you could legally dispose of your individual share. For instance, if one of you five is fatally ill, he or she can in their last will and testament give their share in the property to their child or children. But if one wishes to sell their share, it is expected that he or she would offer to sell it to the others, but considering any ‘outside’ sale, and if this fails, they should enable the others to approve of a prospective purchaser.
Anyway, you have your answer to your question about whether you can claim one-half of the property and that answer is no.
To your next question about spousal maintenance, the answer is yes, you would be entitled to either apply for maintenance or you and your husband can enter into a settlement agreement which would set out how much you would receive for maintenance, which should be enough for you to be able to live in a similar standard as you had during your common-law cohabitation years and during your marriage. The period of time would also be included in it, and before you sign such an agreement, you should have your own independent attorney-at-law peruse and assess it and advise you whether or not you ought to sign it as drawn, or whether he or she would request some amendments.
Or, you could apply to the court, even if no divorce proceedings had been filed, and state the sum you want to be ordered for your maintenance as a lump sum or payable to you monthly, and how and for how long. The judge who hears a maintenance application would consider the financial capability of the respondent husband and the circumstance of the applicant wife, and in your case, your illness and all the evidence given in the course of the hearing, and decide what sum would be ordered to be paid, and also whether the period would be for life, or if you were in good health and could work but would need some training or further studies, would order that such expenses be paid for your maintenance during your further studies or training, and while you seek employment (a reasonable period of time would be determined by the judge, and for a further period of time for some years to enable you to get on your feet and be independently able to provide properly for yourself). If the party applying for maintenance is not young enough or healthy enough to obtain employment and provide for themselves, the order made would be for life.
I hope that I have helped you to understand the position if you and your husband split, but I do hope that you do not, and that you both work at making your marriage work. After 16 years together in a common-law union, you both felt confident enough to get married, clearly intending to be together “till death”. I wish you both all the very best and jointly together till death takes one of you.
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.
