Securing joint property for children’s future

Dear Mrs Macaulay,

My husband and I are paying mortgage for a home under joint tenancy. We have two children together, and I am aware that he has a long-term relationship with another woman. I am concerned that if I pass, he won’t make the effort to secure the property for our children, and rather, would allow his partner to benefit from a half-share of the property. How can I prevent this while I’m living, in order to ensure that my children are secure? Most of the monetary investment in the property has come from me, but I needed his NHT points to secure the mortgage.

Your situation is very sad and unsettling for you and your children. It is very good that you are thinking ahead to try and secure the inheritance of the family home which ought, in a faithful and honest marital relationship, never to be in danger of not naturally following the passage from mother and father to their children.

You can use one or another of the legal avenues I am going to state herein. The Property (Rights of Spouses) Act (PROSA) is the foundational law pursuant to which you can take action, especially as you say that you can establish the fact that you provided most of the monetary investment to secure the property. I feel inclined to conclude that you are also the parent who primarily and consistently cares for your children, and makes provisions for them and for the family and home expenses and regular needs. All these points can be brought to strengthen your case, in addition to your initial larger contribution for the purchase, to ensure success to obtain the orders which you should apply for in the Supreme Court, or a Family Court of Jamaica under the PROSA.

You must first retain the services of an attorney-at-law to act for you. Take all your documents to prove your larger contribution, and payments for items for the household and the children, specifically, and payments of mortgage instalments and other regular payments like for utilities, medical and educational expenses, for repairs, etc, for the premises.

You can also have your lawyer sever the joint tenancy to become “tenants-in-common”. By this you will each own your portions separately and you would be able to leave yours to your children in your will, separate and apart from his portion. This would generally mean that you would each own 50 per cent of the interest in the property. I, however, do not strongly propose this step to you, because you would be giving to him more than he ought to get. When you relate to your lawyer all the facts, he or she can decide.

The provisions of the PROSA can guide you when you are speaking to your lawyer. Section 7 of the Act enables the court to vary the equal share rule and order a much higher share for one party over the other, and in some instances courts have ordered that all the interest be in only one party, and for the other’s name to be removed from the title.

Section 11 of the Act gives the court power to make different orders about ownership interest in the property on an application by summons or other summary process of a spouse, to settle issues of their respective rights of ownership of the property, and as to possession and occupation of the premises or any part of it, or not at all. The court can also award costs of the application to the successful party.

Section 14 of the Act deals with powers of the court when dealing with an application for division of property interests. Section 15(1)(c) allows the court to make an order that both or one of the spouses must make for the benefit of a relevant child, such a settlement or transfer of property as the court thinks just.

Section 23(1), Sub-section (b) allows the court to order share portions in the spouses in shares it considers to be just based on the evidence. Sub-section (g) allows the court to order the vesting of the property, owned by both spouses (whether jointly or as tenants-in-common) in one of the spouses.

Most importantly, Sub-Section (n) enables the court to vest property or a part of it in any or all relevant children.

So the courts have very wide powers to act to sort out the concern you have as long as you take steps to use the legal provisions which exist to protect persons like you, living with the stress and worry about your children’s future should you die before your husband. You must act as quickly as you can to retain the services of a good attorney-at-law to assist you.

I wish you all the best and speedy action on your part to obtain peace of mind.

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 p
rivate, personal responses.