Dear Mrs Macaulay,
I am in need of your advice urgently. I have been married since 2004 but have been with my husband since 1991 (high school). We have been separated but living in the same house since 2006. We have two children ages 12 & 15mths (yes he left me when I was pregnant). He has a girlfriend. He has rented an apartment for his other woman and goes to and fro - he sleeps over when he feels like and comes to the matrimonial home as he feels. The matrimonial home is owned by his relatives and I occupy one room with the kids. He put down money to buy food for the kids and pays the light bill. I have not spoken to him since our last quarrel and fight almost two years now and he has made no effort. I am not working and he will not give me any money. What do I do from here? When I get a job is it OK to move out of the home with my kids? I have no problem with him taking them for weekends or whenever he wants to see them but how do I go about applying for separation and then divorce? I once told him that to live his kind of lifestyle he needs to end it properly and he said he will pay a little to get rid of me. I reported it to the police at the time. What do I do now?
- Abandoned Wife

Dear Abandoned Wife,
How unfortunate that your husband chose to abandon you as his wife while you were pregnant. Though he comes to the matrimonial home sometimes, you are separated as a couple, and you are living separate and apart. It however, seems that he has not abandoned the older child or the one born after the breakdown of your marriage. You say that he "puts down money to buy food" for the children. You also say that he pays for electricity supply. He is clearly a man who recognises that he has obligations to meet, even though he is not meeting all that he should and is ignoring others.
Let me state something clearly right here -YOU DO NOT NEED TO MAKE AN APPLICATION FOR SEPARATION. You are already separated. You say you have not spoken to him for almost two years. This being so, I assume you have had no sexual relations with him for the same period. Since you have been separated for over 12 months, you can proceed to apply for a divorce. It seems that efforts to effect a reconciliation were not successful, because you say he has made no effort. You can, if you understand what to do under the Matrimonial Causes Rules, file your petition in person or you can retain an attorney-at-law to prepare the papers and file them for you.

In the petition, you should not only ask for the marriage to be dissolved, but you should also ask for custody, care and control of your children, with access to him on fixed days and times; maintenance for them and for yourself. If he has an interest in the matrimonial home which you say belongs to his relatives, then you could also add a claim for a share of his interest therein. If he does not have any interest in that property but he has other assets, which he obtained while you were together and during your marriage, you should also make a claim for the court to make a declaration as to the proportion of your interests in those assets and for their division. These could be any other real estate, motor vehicles, bank accounts and investment accounts and stocks and shares.

In the course of the processing of the petition, the application to obtain the respective orders for custody, care and control, access, maintenance, declaration of interest and division of property could be filed, heard and made, or at least, be a good way along with a hearing or more, before the Decree Nisi is granted on the petition for the dissolution of the marriage.

If you do get a job (and you should try your best to do so as soon as you can), you can definitely move out of the single room you now occupy with your children. This you can also do even before you get a job, after you have obtained the orders of maintenance for yourself and your children. Your application for maintenance must include with the sums for the other necessities of life, a sum for rental of premises for you and the children. Appropriate shelter is a necessity of life. You must also remember that in all the applications relating to the children, what is in their best interests must be the most important consideration.

You should also know that you can apply for the orders for the custody, care and control of the children; for maintenance for yourself and the children, as well as regarding declarations of interest in property and partition/division of the interests as ordered, even without and before filing a petition for the dissolution of your marriage. So you can do everything together or go for the care, protective provision orders first and deal with your divorce later.

I really think that you ought to move with your applications as soon as possible, because if indeed the premises which is the family home belongs to others, they might want you and the children out of there. The sooner you take steps to sort out your situation and get orders made to uphold yours and your children's legal rights and entitlements, the better your circumstances will be. You must ensure that there is certainty in your life but especially in that of your children. There must be consistent provision made for them and clearly this must be done by way of court orders.

Margarette May Macaulay is an attorney-at-law and a women's and children's rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.

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