Ex wants her share of estate

Dear Mrs Macaulay, If I lived with my husband as man and wife in a house he owned before our marriage, and the property was not discussed in our divorce, can I still make a claim now that he has remarried? My ex-husband and I were married for 17 years and have three adult children.

He inherited the home from his parents, and we both spent money during the marriage on its improvement and upkeep, and both contributed to making a section of the home a rental property.

I migrated and divorced him from the United States, as I was trying to legalise my status there. The divorce was finalised last June.

The issue of property ownership didn’t come up. Now he has recently remarried and I am back in Jamaica for good, and I was just wondering if I had any right to a claim in the property, since it was the family home.

Of course you have the right to file your claim for a declaration that you are entitled to a 50 per cent interest in the family home premises, plus the necessary consequential orders of the means by which you shall obtain your actual share as declared — for instance, that your ex can purchase your said interest, or failing this, that the premises be sold and the net proceeds divided in the proportions declared by the court.

In addition, there should be a second claim for a declaration that you are entitled to 50 per cent of the rental proceeds received for all periods of its rentals, and the necessary consequential orders that a full account be given and produced of all the rentals and explanations given of any periods reported as non-rental periods — in other words, a full and detailed account statement covering the whole period from the first rental period to the last, proof of any deductions or expenditures, and an order that your net 50 per cent be paid over to you within a specified period of time and a claim that such other orders and/or further orders be made as the judge seems just.

The latter is important in case something comes out in the evidence which you did not know about before, and because the definition of “property” in the Property (Rights of Spouses) Act (PROSA) is extensive and includes real and personal properties and even debts owed to him and property in expectation, and negotiable instruments which were his during the years of your marriage.

Applications under PROSA must be by way of a fixed date claim form, supported by an affidavit in support and filed within 12 months of the grant of your decree absolute, which you say was in June.

If this was this last June, then you have about eight months before 12 months is up.

If it was June 2025, then the 12 months would be over, but the Act provides for a party to apply to the court for an extension of the time to enable you to file, or to accept your claim filed outside the 12 months’ period of time.

Here in Jamaica, division of property questions/ issues are not dealt with in the divorce proceedings.

These are the points which would assist you to be successful with your claim:- 1) You should put in your affidavit in support the date from when you and your husband started residing in the home and about the births of your children there and that it was your family home; 2) Then you should try and detail all the evidence you have, in as detailed a manner as you can, of your contributions for the running of the home, provision for the children, for repairs and improvements to the premises, and if you ever assisted with the care of either of your ex’s parents; 3) The contributions you made to making a section of the home premises into a rental space and what the rental was initially, and who collected the rentals and what was the idea you and your then husband said the rental would be used for.

If you can remember or have notes of how much money you put into this, you should say so.

If not, just say as much as you recall. The fact of your ex’s re-marriage does not affect your right to your share of the value of the family home, even though it was inherited by your ex.

The facts of the gift to him can only lower your share, if the parents made it clear that it was a gift solely to him. If the property became and was your family home for 17 years, it is in my opinion that the 50-50 entitlement provision of PROSA applies.

So please go and retain your lawyer to prepare your application to the court pursuant to the PROSA as soon as you can.

The sooner your application is filed, the better. May I just say that your ex should have preserved your proportional entitlement in the family and matrimonial properties you both had during the currency of your marriage.

The Act makes this clear, and his new wife cannot supersede your interests which are yours in law for you to claim through the court and obtain the necessary declarations and orders for you to actually obtain you dues pursuant to the Act.

I wish you the very best and all success.

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.