The prodigal husband returns
Dear Mrs Macaulay, My husband ran off seven years ago without telling anyone where in the United States he was. I raised our children alone and assumed our marriage was over. I never heard from him, and only knew that he was still alive because his family said he was doing OK. His extended family helped me when I struggled with the kids. Last month he showed up (I assume he was deported) asking to move back into the house because we’re still legally married. What are my rights?
The fact that your husband ran off without warning, abandoning you and your children and without any information where he was going, leaving you to assume all the responsibilities of providing for and raising your children, must have been very painful, traumatic and confusing.
I feel the highest respect for you, in that you overcame your own feelings and did all you could for your children as well as upkeeping the home premises.
More difficult is the fact that your husband is asking to move back into the house on the basis that you’re still legally married. I suppose this is a better way than his saying that he is your husband; certainly not after seven years of abandonment, no communication, and a complete abdication of all his legal obligations both as a husband and a father.
My direct and short response is that you are in a very strong position legally, and you have every right to protect yourself, your interests, your home and property, and most of all your children. You also have the right to go to court to protect these rights.
You can bar him from forcing his way into your home and you can advise him that the court will have to decide the issues which he has caused by his desertion and abandonment. You must move as quickly as you can with what I suggest below.
In my opinion, you must first go to the Family Court in your parish and apply pursuant to the Domestic Violence Act for a protection order on the basis that you no longer know this man and feel unsafe just with the thought of this stranger coming to live in your home, and are afraid of what he may ask of you if he does move into the house. Report that you are also concerned about the emotional and physical safety of your children, when they seek information about his abandonment and sudden reappearance. As you suspect, he may have been deported and he would not want to answer such questions and he may react violently.
You do not even know what he was doing while away; he could have been in prison in the States serving a sentence(s) for one or more offences. You know nothing about him. You should also therefore apply for an occupation order for you and your children to permit only you and the children to live in the home. This course of action is the immediate protection until the domestic issues, property and his access thereto, as well as financial issues regarding his passed and owed maintenance contributions for the children, and his future contribution for his children’s maintenance and his interest in the family home (if any) are decided. The Family Court should be informed that the orders you seek there are [temporarily] for yours and the children’s protection, until the Supreme Court deals with your divorce petition and your application about your interest in the house pursuant to the Property (Rights of Spouses) Act.
You should then for yourself also get a lawyer to represent you to apply for a divorce immediately as his seven years abandonment is six years more than the 12 months required for living separate and apart in order for a divorce petition to be filed pursuant to the Matrimonial Causes Act. Your marriage has irretrievably broken down, you have lived separate and apart for seven years, and there is no reasonable likelihood of you both ever again living together as man and wife.
In addition, in your petition you should include an application for maintenance for the children.
In my opinion, if the house is owned by both or either of you, with your lawyer’s assistance you should be able to end up with 100 per cent interest being declared as yours by the court, because of his total abandonment of you and the children for all those years. You had to carry all the burden of providing for yourself, the children, and the upkeep of the home, notwithstanding the periodic assistance from his extended family.
You must, of course, since he has reappeared, apply for sole legal custody and care and control of the children and, I repeat, for his contribution to their total maintenance expenses. Your attorney should also consider whether to apply for maintenance for you yourself. But one thing which must be done is that a claim must be filed for him to refund the total of his share of the children’s maintenance for all of the seven years, plus the period of time up to the date when his current maintenance obligations for the children are ordered to commence.
The issue of the children’s legal custody, care and control will be dealt with pursuant to the Children’s (Guardianship and Custody )Act. Regarding his access, I must advise that this must be properly adjudicated and constrained as in my opinion this man is not a parent who can be considered safe to have any legal custody or any unsupervised access to the children
Any order for him to have access must be strict. I believe it would be contrary to the best interests of the children and unsafe, because you know nothing about what he was doing during those seven years to let him have any access to the children.
You have the law on your side, but you must act and take the steps I have suggested as soon as possible. When people do not act in good time to obtain their entitlements in law, they invariably lose them, or only get a part. So please act and do not let him into the home just because he is still in law your husband. Please take action immediately in yours and your children’s best interests, and you all be careful.
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. All responses are published. Mrs Macaulay cannot provide personal responses.
