Dear Mrs Macaulay,
I have been in a relationship with my spouse over eight years. He is still married but was separated from his wife from the start. He moved out of the matrimonial home around five years ago. They have two children, the youngest being 22 years. We bought a house together one year ago and we have two children of our own. We are happy and have no problems. The wife accepts the separation but does not want to sign divorce papers when/if presented. The house is in both of our names. My question is, if he passes, will the wife be able to acquire any part of our home or anything else he owns? If he does a will and indicates what he wants, can she argue against it? Please advise me about what I can do to secure myself and our children in the future.
I have noted the contents of your letter, in which you have referred to yourself as a “spouse”. I am sorry to tell you that you are not in law a “spouse”. You may have been in a relationship for eight years with your man, but since he is still married in law, you have not been living as common-law spouses in law, though you might have been so in fact.
You say that though his wife accepts their separation she does not want to sign divorce papers. The Matrimonial Causes Act does not require the respondent in a divorce petition to sign papers when they are served. It, however, requires for service to be effected on them personally, unless the court orders that it is done by way of substituted service and in the manner stipulated in the order. The Act also provides that the service be proved by means of the filing of an Affidavit of Service. The petitioner cannot himself or herself effect service of the petition on the respondent. When the court is satisfied upon considering the contents of the Affidavit of Service that service was effected as the Act provides that it must be done, then the divorce can proceed to completion.
I therefore cannot understand why you say that your man's wife has refused or failed to sign the 'divorce papers' and so his divorce has not been completed. Surely he had a lawyer representing him, so he would have been informed about what is required to be done under the law.
Anyway, as I have already stated, you both have not been cohabiting as common-law spouses and have not formed a common-law union. To do so, you both must be single, that is to say, that you were never married, are divorced or widowed, and have lived together as man and wife for not less than five years.
You say that you and your partner bought a house together. You have merely said that the house is in both your names, but not how you hold the interest in the property. Are you joint tenants or tenants-in-common? If you and he are registered on the title of your home as joint tenants, and he dies before you, his estranged wife would not be able to make any claim against the property because by law the whole property would then be yours. If you are indeed joint tenants and you die first, then the whole property will be his by law. If he does not then join your two children on the title with him as joint tenants, and he dies as the sole registered proprietor and his estranged wife is still alive, she could claim to have an interest in his estate. He could prevent this by leaving the property to your children in his will. She could try to contest it, but in the circumstances of the fact of your life with her estranged husband and that the property was purchased by you both, it would be unlikely that she would succeed.
If the property is held by you both as tenants-in-common (unlike a joint tenancy whereby you both hold the whole interest together), you are each separately holding 50 per cent of the interest in the property. So if he dies, his 50 per cent interest will go to his estate while you still have your own 50 per cent of the property. If he did nothing to secure his half interest for you and the children, and dies intestate (without a will), then the wife could make a claim for her share of his estate under the Intestates (Estates and Charges) Act. You would have no claim as you are not a common-law spouse. The interest of the children (all his children, yours and hers) cannot be taken or diminished by her. Such claims by estranged husbands and wives have been made many times before, and however unconscionable such claims may be or seem, they have succeeded.
You have asked what you can do to secure your interest and that of your children. In my view your partner should retain a good lawyer and proceed with his divorce as soon as possible. I see no reason why this cannot be done successfully. Then you ought to get married as soon as possible in a simple ceremony. This will secure your legal status wherein you will be first in line to lay claim to your husband's property interests if he dies before you.
If the title of your property is held by you both as tenants-in-common, you should change it to a joint tenancy. And as you are worried about your children, if there is no mortgage on the property, then you can really secure the children's future interest in the property if you and their father add them as joint tenants with you both on the title. This will completely protect you and them, as the property will keep passing down by law to the survivors when one person dies until only one is left alive, who will then be the sole proprietor. This will be the case as long as the joint tenancy is not severed.
If you do not or cannot hold the title with them as joint tenants because of a mortgage, then you should each do your wills leaving all that you each own, real and personal property, to the other and to your two children — that is to say, make mutual wills. This will ensure that if he dies first, all that he owns will go to you and the children. If you die first, then all you own will go to him and the children.
I must advise you and your partner to be prudent and retain a lawyer to do one or two of what I have advised to secure the interests in your home and other properties for yourself and your children.
Good luck to you all.
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 email@example.com; 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.