Wife hiding property from hubby before exiting marriage

Dear Mrs Macaulay,

I am in a situation where I want to get out of my marriage, but I want to secure myself first. Over the last few years I have bought a house with my mother, bought a car in a family member’s name, and secured some funds in an unknown bank account. My husband and I own the house we live in jointly, so I expect that to be dealt with in the divorce. What are the chances that he could come after the other properties I have acquired recently and claim half? Can a partner hide property and other assets from a spouse and not have it counted as marital assets?

My goodness, woman, on the basis of your two questions, it is clear to me that you are aware of the existence of the Property (Rights of Spouses) Act (PROSA) and that it has provisions about the division of property, real and personal, and all assets between the parties to a marriage or a common-law union upon the irretrievable break-down of the marriage or the termination of cohabitation of the common-law union, or pursuant to the wishes of the parties to either of these unions, before they commence or which are still subsisting, to settle their respective interests in all the properties held by them or may be held in the future, according to their wishes and agreement.   Such agreements ought to be evidenced in writing as is provided in section 10 of the Act, and each party should have their own attorney-at-law, who must certify that the terms of the agreement were explained to their client and understood and agreed by them.  The court of course has power to consider and decide whether such agreements, if upheld, would be unjust to the party who applied to it to examine the contents and all the circumstances of such an agreement.

You are also clearly aware that as to your jointly held interest in the family/matrimonial home, the shares are presumptively held at 50 per cent to you and your husband.   But this is only presumptive, as it can be challenged in a court action and proved that one party should in fact have no interest at all in it, or less than 50 per cent.   You may however not know that there is a large body of decided cases wherein one spouse has been held to be entitled to the entire 100 per cent interest in the value of the home or 80 per cent, 70 per cent, or some other percentage, despite the fact that it was registered in the joint names of both parties.

In your case, you have taken pre-emptive actions to secure some properties for yourself on the quiet, so that your husband will not get a share of their value.   What is the effect of what you have done?   These acts are very serious and could lead to dire consequences for you.  They are contrary to provisions of PROSA.

Let me then refer you specifically to the provisions in the Act and the legal consequences to a party who seeks to, or has taken steps to act contrary to the Act in order to defeat the interest of the other party as required in the provisions of PROSA to their detriment and the unjust enrichment of the party.   You understand that such actions are unlawful and fraudulent, I hope.

Anyway, the Act has given to the court very wide powers to cancel and overturn such properties acquired with another person (that with your mother) and in the name of another person (the car you purchased in a family member’s name) and the funds you have put in an unknown bank account.  All these can be undone by the court, upon an application of your husband, and the court can order the sale of these properties and the payment of the sums into court, plus the proceeds in your ‘unknown bank account’, so that the court can decide on the just division of all these proceeds.

Section 11(3) of the Act makes this clear and it matters not that the property is registered in yours and your mother’s names and the vehicle in that of a family member.    This is predicated on the fact that your husband does find out or has strong suspicions of your actions.

If  you had taken any such action after you or your husband had already filed proceedings for the court to determine your respective property interests, then you would have committed an offence under section 20(1) and (2), and upon being convicted in a summary trial in a parish court, you would be liable to a maximum fine of one million dollars, or to a maximum term of imprisonment of twelve months, or to both a fine and imprisonment.

If in the course of the  divorce and family property division proceedings you falsely state in an affidavit that you have not secreted any purchase of property or the holding of any type of property in order to decrease or defeat your husband’s shares, you would be exposing yourself to perjury and fraud charges  and when such acts come to light, your husband, even when he is then an ex, can legally proceed against you and have them all overturned as I have already stated.

This answers your question about whether he can come after the other properties you have recently acquired and claim half. To remove all doubt, yes he can, if and when he finds out about them,

Your second question has, I believe, been answered, but let me be clearer.  The partner who does this (you), is acting illegally and is taking a chance that their illegal acts will not be discovered.  I therefore ask you, do you believe that acting illegally and hoping that such acts will not be discovered  are right?  You do know that there would be legal consequences both in the civil courts where your matrimonial proceedings are dealt with, and in criminal summary trials pursuant to the Act, ie, PROSA.  But there will also be the possibility of serious criminal charges of fraud and perjury.  Do you seriously want to take this chance, with your reputation and personal liberty?

I suggest that you retain an experienced attorney-at-law to properly advise you and act for you, to disclose your actions and seek to obtain a settlement agreement with your husband’s attorney-at-law of ALL the properties (real and personal) and all assets held by you both and which you both can live with without any danger of the hammer of justice falling on your head.

I hope that I have assisted you to see that your actions were wrong and short-sighted and that it is better to always act legally and properly and have a clear conscience.  So please act in this way, in your own best interests.

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.