All Woman

Six years, four kids and spousal abuse

Margarette MACAULAY

Monday, March 19, 2012    

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Dear Mrs Macaulay,

I have been married for six years. I have four kids, two for my husband. My relationship with my husband has been verbally and physically abusive but we are still living in the same house. I need some advice about what to do if I am seeking a legal separation leading up to divorce, and what will happen to my kids.

By your letter, you have asked for advice about what to do in order for you to ultimately obtain a divorce from your abusive husband.

You have only given me few facts and I have assumed that your two other children were living with you and your husband and treated as if they were part of your marital family.

Let me refer to and deal with the issue of the violence you have alleged on the part of your husband. In this regard, you can and should go to the Family Court of your parish and tell them that you need to see an intake officer to assist you to apply for protection orders and an occupation order under the Domestic Violence Act.

I say this because if your husband is abusing you verbally and physically, you are not the only victim of his abuse; your children are also. Your young children who reside in the family home and are witnesses to the various incidences of abuse are also suffering the consequences of his abusive and destructive conduct.

You have clearly decided to end your marriage. Therefore, you must take steps to protect both yourself and your children from his harmful influences. So please go to the Family Court and speak with them and apply for protection orders which will restrain your husband from engaging in his abusive conduct towards you and the children. With the occupation order, he will either be put out of the home or be restricted to only certain parts of the home. The latter will only be considered if to order otherwise will cause undue hardship.

You should also ask them simultaneously to handle your application for maintenance. Since you did not indicate whether you are a stay-at-home wife and mother, I will assume that you are not and that you do not need or wish maintenance for yourself. If I am incorrect, you should ask that they assist you with your application for firstly, custody, care and control of your children; secondly, access to your husband as you both decide or as will be best for the children in the view of the judge; and thirdly, maintenance for your children.

Before you go to the court's office, you should have worked out how much it will cost to provide shelter -- if it is a rented premises that should be rental plus the utilities charges proportioned by the number of persons in the family and then multiplied by the number of children being maintained; and if it is mortgaged, then the mortgage must continue to be paid as was usually done. Also factor in the costs for transportation, clothing and footwear, food and lunch money for the children, and based on yours and your husband's salary/income, his contribution for these can be worked out and should be claimed by you. The percentage he must contribute will be fixed by the judge and also the percentage for their educational, medical, dental, and optical expenses.

These, then, ought to be your first steps to think about and then take.

You have asked what to do if you are seeking a legal separation leading up to divorce. In this regard, the decision about separation is yours to make. Once you have separated from your husband, you must live separate and apart from him for 12 months continuously, then at the end of the year, you can file your petition for divorce.

Living separate and apart means that you do not have sexual relations with your husband. You both can still continue to live in the same house, you can even continue to help him out by cooking and doing his laundry (if you are so inclined), but you cannot continue to have sex with him and go on as if your marriage is still subsisting as was the case before you separated.

So you must decide that your marriage is at an absolute end, then you should tell him so and make sure that you cease cohabitation. As you say he is abusive, you may consider getting the protection and occupation orders first before you tell him of your decision. You may and perhaps should try counselling and then you can even cohabit for very short period(s) to try to reconcile (though with abuse present I do not see the use of this). However, your decision that your marriage has broken down and cannot be revived must be sure and final.

As to what will happen to your kids, I have already dealt with this generally when dealing with the violence issue. Your two children, who I assume your husband accepted and were treating as his, would be children of the family and as such the obligations which he assumed towards them will have to be continued and so you must also apply for orders for their maintenance by him. As to their custody, you may have to apply for this from their biological father, if you had not already done this. But since you and your husband had care and control of them, you should apply for this with your applications against him.

As for the two children of the marriage, you must apply to have custody, care and control of them; access to your husband, as you both agree or you suggest to the court; and maintenance contribution and all or half of education, medical, dental, and optical expenses.

If you or your husband or both of you own the family home, then the issue of your respective property entitlements will also have to be dealt with at some time. You can decide to do everything about the same time or spread them out as you think best.

Good luck to you and your children.

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 advice via e-mail.

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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