All Woman

Cheating spouse still wants half the assets

Margarette Macauley

Monday, December 03, 2012    

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Dear Mrs Macaulay,

I was in a common-law relationship for 15 years, however, the relationship ended when I was kicked out by my common-law hubby who caught me with another male in a compromising position in the car he bought which I had the privilege of using whenever I wanted. Now it's way over a year since we've been separated. Can I still pursue him in court for half of what he has? What other judicial actions can I take seeing there's no evidence of me having been in a relationship with another person?

Remember, since 1989, any married person who wants a divorce has to prove the irretrievable breakdown of the marriage. Your fidelity or infidelity has no relevance on your rights in law following a separation. There are no provisions for any entitlement or curtailment based on the issue of fidelity in any of the provisions of the Property (Rights of Spouses) Act or in the Maintenance Act, which make allowances for common-law unions. So the details you provided are not relevant to your legal rights.

What matters are the following: (1) whether you and your ex-spouse were single persons when you were cohabiting; (2) whether you cohabited as if you were, in law, man and wife; (3) while you were both single and cohabiting as man and wife, that you did so continuously for at least five years immediately preceding the break-up of your relationship; and (4) that you make your claim within one year of your separation, unless the period is extended by the court.

If the first of these three requirements is answered in the negative, the second and fourth ones would not really matter, because you could not in law qualify as common-law spouses. However, since you were together for 15 years, if one of you was not or both of you were not single when you commenced cohabiting but became so in the course of the cohabitation, and you positively fall within number three above, then you would qualify.

But you also say in your letter that it is now well over a year since you have been separated. I am not sure exactly how long this is, but as long as it is not inordinately long — say not too much over two years, you should rush to a lawyer to prepare and file your application under the Property (Rights of Spouses) Act, with the added application that the time for the filing of your claim be extended. Your lawyer must, of course, add your reasons for your delay in the filing of your application in your affidavit in support, plus, of course, also for a declaration that you were common-law spouses.

A claim for maintenance should also be added to your application, that is to say if you now find that you are in need of such support even for a time until you get yourself to the position where you can provide for yourself. I do not know, of course, what your age is and what your circumstances are. If you do not need any contribution from him in order to provide the necessities of life for yourself, then you should not bother to apply for maintenance. If you do need assistance, then you should.

If you decide to go ahead with any or all the claims, you must move quickly and have your application filed before much more time goes by. The longer you wait to file the application, the more difficult it will be for the court to accede to your application to extend the time for you to apply pursuant to the Property (Rights of Spouses) Act for a declaration that you were in law his common-law spouse and that you both have like interests in your erstwhile family home, and to determine the percentage of your interest in other properties including the notable car you used to drive.

I wish you godspeed and good luck.

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. Mrs Macaulay cannot give personal advice.

DISCLAIMER:

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.

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