Dear Mrs Macaulay,
My husband refused to pay his home improvement loan for two years. In this time he had left our home after being served restraining and occupancy orders. The National Housing Trust (NHT) contacted me after trying on several occasions to get him to make payments. They told me the account was going to their legal department. They also said if I paid his arrears he would be liable to pay me back. I have letters that the NHT gave me copies of that they had sent to him. I paid the arrears and now I'm being told by the court that I cannot recover my money. Please explain why this is so. He is legally entitled to half of the property we own even though he did nothing financially to it. So why then is he not also responsible for half the debts of the property?
Your husband left the family home pursuant to the protection and occupation orders you obtained under the Domestic Violence Act. As a result of these orders he was legally bound to keep away from you and from the premises. These orders, especially the occupation order which put him out of the home, should, however, have not absolved him from making his mortgage payments.
It would have been prudent of you, or if you were represented, your lawyer, to inform the court that he had a loan with the NHT and the judge would have either made an order that he continue to make his payments or explained to him that despite the effect of the occupation order keeping him away from the home, that the law required him to continue to meet his mortgage payment obligations.
It is not surprising that a husband whose actions towards you caused the court to make orders for your personal protection against him and the occupation order for him to vacate the family home and stay away from it, would refuse to pay the instalments on his loan. You should have expected that he would act this way in order to cause you more grief and upset. This is why the law says that the ousted spouse must continue to meet their obligations. But the judge would not have known that there was a mortgage or home improvement loan if you had not indicated such, and a clear order needed to be made to ensure that he continued to make his payments.
It seems that you did not do so at the time your domestic violence application was being heard and then you never went back to the court during the currency of the orders to ask for a variation to cover his failure to pay.
You have not stated what action you filed in the court that you say is telling you that you cannot recover your money. Did you just sue for recovery of a debt — that is, as you paid the money he owed, he owes you the money? If so, I am not surprised that the court said what it did.
In law, his debts are separate from your own debts and you are each liable for your own debts. If you take it upon yourself to pay his debts without him asking you to pay the sums due for him, a court may decide that in the circumstances, your payment was a gift to him or that the payment was done for your own benefit.
The fact that you are husband and wife and that you both have an interest in the premises could muddy the situation.
If you went to court for a declaration of your interest in the property and a division of interests, then you could plead that you are entitled to recover this sum, because you had no choice but to pay it in order to save the property from being sold because of the arrears. You would in all probability get at least one half, which on the face of it is the interest to which you are each due and entitled to. Though it was his loan, as long as the money was spent on improvements of the premises, you would each have 50 per cent interest in the increased value the improvements caused.
He could be liable for half of the debts of the property but this depends on which action you filed in court and what you pleaded in you claim. If you file the wrong claim then you will lose, as you seem to have done. You, however, did not give me enough information for me to be able to give you more definitive directions save what I have stated in the foregoing paragraph.
Basically, courts decode matters by what is claimed and if you file the wrong action, you suffer the consequences of such a mistake. I am sorry but this is the situation in law. I hope I have assisted you to understand and wish you 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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.