Wife wants share of wealth hubby has with relatives

Dear Mrs Macaulay,

My husband is buying land with his family, and intends to build apartments on this land. Do I have any claim to any of these as his wife, even if he buys the land as joint tenants with a family member?

Your husband’s actions points to his intent to attempt to exclude you from having any share in the interests of the property, actions which fall within the ambits of the Property(Rights of Spouses) Act.

Before I go any further with my answer to your question, let me advise you at once to go and retain the services of an attorney-at-law who is well versed with cases on the applications of the provisions of the Act, and who has deep knowledge of decided authorities to be able to choose those which are applicable to your case. Yes, I say ‘case’, because you need the court to deal with it on your behalf. It is best to file your claim now, since you know what he is planning, and not act and cause time to pass until the construction is complete. If you don’t, it could be argued that your delay is intentional ‘laches’ (an unreasonable delay in pursuing a legal claim, where the delay has prejudiced the opposing party), so the greater or the greatest sums would have been invested before you decided to act.

Please retain your lawyer to act now and secure your interest in the premises as the law permits, whereby the construction could be done after rectification of the proprietors on the title has been done.

Let me now try to answer your question as clearly as I can. I understand your letter to mean that your husband and one member of his family will be registered as joint proprietors of the land, and that apartments will be constructed on the land for renting or sale, to his and his family member’s benefit, with none to you, though you are his wife. Remember that even if your marriage had been dissolved, you would still be able to claim your share(s) pursuant to the Act within 12 months of the dissolution, or within such a longer period as the court allows upon an application for extension of the time which shows good reasons for the delay.

The Act defines “property” as any real or personal property and any estate or interest in real or personal property; any money, any negotiable instrument, debt or chose in action (intangible personal property), or other right or interest whether in possession or not to which the spouses or either of them is entitled. This definition does not relate to the “family home”, which is defined separately. But we are not here concerned with the family home, but to all other property, interests and entitlements.

You must clearly see that the funds your husband would have to use to invest in the ownership of the land and for the costs of the construction would either come from funds he had saved over the years, wholly or partially, or partly from his money and partly from loans which he would have applied for. However he is or has funded the project, he is supposed to have protected your share thereof, and he really should have discussed it with you, and if he had other plans than having you as a registered proprietor with him and his family member, he ought to have entered into an agreement with you as to the ownership and division of the interests in the property between you and any other person or institution. Clearly there is no such agreement, which would have needed for you and your husband to have your own independent legal representation and advice. Since you have no such agreement and you are concerned about your interest, you are pursuant to the Act, entitled to apply to the court for a declaration that you have an interest in such property, and another that your husband had no right to seek to exclude you from the transactions and thereby defeat your right to a share, and for the court by order to restrain your husband from completing the purchase and registration as he had planned. And if he has completed the registration, then the court could cancel the transfer, and have it rectified with the addition of your name therein, and in the proportions of interests to each person as the court deems just. Or, the court can be asked to order the payment over to you of the proportion in money as it determines your share is worth.

Anyway, as I stated above, you must retain the services of a lawyer to act for you and to make your application to the court as soon as possible. You must give your lawyer all the information you have because he or she would need specific information for the property to be identified and for a copy of the registered title to be obtained.

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.