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, as it is for so many other women in similar situations.

It is very good that you are thinking ahead to try and secure that the familial 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 wish to know what you can do to secure the property for your children, in case you pre-decease your husband.

You can use one or other 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 and are sure that you can establish the fact that you provided most of the monetary investment to secure the.  I feel inclined to conclude, as I have known these types of marriages to be, that you are 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, and to ensure success to obtain the orders which you should apply for to the Supreme Court or a Family Court of Jamaica as PROSA provides for applicants to obtain.

So you must first retain the services of an attorney-at-law to act for you because you need to take effective legal steps to get the results you want.  Take all your documents to prove your larger contribution and payments for whatever for the household and children, specifically; and payments of mortgage instalments and other regular payments like for utilities, medical and educational expenses, for repairs, etc, for the premises.

The first step to consider and possibly do, is that you can have your lawyer sever the joint tenancy to become “tenancies-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 will each own 50 per cent of the interest in the property.   I however, do not strongly propose this step to you, because you will be giving to him more than he ought to get. I am aware that your letter is not detailed enough for me to conclude this, which is why you must get your own lawyer to whom you can safely relate all and every bit of the facts in the circumstance of his lower contribution for the acquisition of the premises and his attention being elsewhere.

The  provisions of PROSA, which you can use to guide you when you are speaking to your lawyer include:

–  Section 7 of the Act enables the court to vary the equal share rule between spouses, and order a much higher share for one over the other. 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, whether the family home or other types of properties, and the facts which the court must take into account to decide the matter.  The first factor is the contribution of the respective parties, financial or otherwise, and directly and indirectly for the acquisition, conservation or improvement of the property. Other facts or circumstances to consider are his lifestyle and conduct and its length, which in the court’s opinion the justice of the case requires that they be taken into account in the making of the decision.

–  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)gives power to the court to make orders listed in sub-sections (a) to (n), and I highlight the following sub-sections:-

–  Sub-section (b) by which again the court can order share portions in the spouses in shares it considers to be just based on the evidence.

–  Sub-section (g) by which the court can order the vesting of the property, owned by both spouses (whether jointly or as tenants-in-common), in one of the spouses.

–  Sub-section (i) enables the court to make orders for the payment of sums of money by one spouse to the other.

And most important for your concern is Sub-Section (n) which 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 people who find themselves in the situation which you are in, and living with the stress and worry about your children’s future in having a secure roof over their heads in case you die before your husband and he brings his paramour to the family home.

You must act as quickly as you can to retain the services of a good attorney-at-law to assist you by preparing and filing your application for all the orders which you need to have in order to secure the property for yourself and your children.

I wish you all the best and speedy action on your part to obtain the necessary orders for you 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.