Options for the common-law spouse

A reader asked what claim she may be able to bring against a man with whom she has resided in a common-law union since February 2007 and what steps she should take to protect herself now that the union has broken down and her common-law spouse has become violent.

Although the reader and her common-law spouse are both registered owners of the property in which they reside, he served her with a notice to quit, changed the locks on the doors and attacked her with a machete.

The reader should feel confident that her common law spouse has no greater legal right to the property than she does, and his attempt to treat her as a tenant by serving a notice to quit was seriously mis-guided. More importantly, the reader should take steps to protect herself and her child by obtaining protection and occupation orders under the Domestic Violence Act.

An application could be made to the Family Court or to the Resident Magistrate's Court, if the reader resides in a parish which does not have a Family Court. If the court is satisfied that it is necessary for the protection of the reader or her child, an order may be made giving the reader and the child the right to live in the house while ordering the common-law spouse to remove from the residence, despite the fact that he owns the property jointly with her.

The common-law spouse's departure does not mean that his obligations end. He will still be required to pay child maintenance and, if the reader has reasonable financial needs which she is unable to meet, he may also be ordered to pay spousal support.

Family home

The reader indicated that the residence is jointly owned by her and her common-law spouse, so that issue will also need to be addressed. Being the couple's principal place of residence, the property is the family home, as defined in Section 6 of the Property (Rights of Spouses) Act, which also presumes that each party has an equal interest in it. However, as the reader outlined that there was unequal contribution towards the renovation of the home, she might not be willing to accept that her common-law spouse has an equal share in the property.

This could give rise to court action, since the parties are unlikely to agree on the proportions in which the property should be shared. An action for declaration of interest in property (whether the home or other property owned by either or both spouses) may be commenced upon "the cessation of cohabitation with no prospect of reconciliation". Court actions of this nature can be long and protracted.

The reader would be well-advised to attempt to save time and costs by trying to negotiate a settlement of the claims to property and maintenance. Such a settlement could involve a lump sum or periodic payments for maintenance and agreement that one party will acquire the interest of the other in the property; or that the property be sold on the open market.

The fact is that there are legal remedies available to the reader and her interests would be best served by retaining the services of an attorney-at-law to whom detailed instructions could be given, so that she can discuss her options and receive proper advice.

Sherry-Ann McGregor, partner and mediator, Nunes, Scholefield, DeLeon & Co. attorneys-at-law and notaries public, 6A Holborn Road, Kingston 10. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.