Divorce and the splitting of assets

Dear Mrs Macaulay,

I was in a relationship with a man for 11 years. That relationship produced two boys. We later got married in 2008 but I had to leave my home in 2010 because of infidelity and spousal abuse. The marriage lasted one and a half years. In April of 2014 I was told by a friend of his that he had divorced me and sold a piece of land and took the money and left the island. I did my investigation and found out that it was indeed the truth.

My question is, am I entitled to anything? All the things that he acquired were done during our relationship and before our marriage. We used to operate a business together, which was registered in both our names, and I was working alongside him before and during our marriage. The business is now closed.

I am not sure about the laws where division of property is concerned, but I am in dire need of some advice. I also found out that he had rented out the house where we had lived for 10 years, but up until this day neither the children nor myself have received a cent from him. I have been told that a person can be divorced without their knowledge, but what I am uncertain of is the settlement of assets where children are concerned. I am not sure if at this time I am entitled to anything. I would love to hear your thoughts on this matter.

I advise you to retain a lawyer immediately, who will guide and help you to prepare your application for filing in the Supreme Court. This must be done as a matter of urgency, so that more time does not go by with inaction on your part.

I say this because in law, the period within which you should file your application for a declaration of your interest and division of property is one year after the dissolution of your marriage. However, this period can be extended upon your application when you can show to the judge that you did not just sit around doing nothing, but that your husband acted without your knowledge in obtaining a dissolution of your marriage in 2014, sold land which had been acquired during your relationship, and then surreptitiously left the island without making any provision for your children.

As what he did — regarding selling the land and making off with the money — is an offence under the Property (Rights of Spouses) Act, this is pertinent information to convince the judge to grant you an extension of time within which to apply for your share in all the properties and the assets of the business, and to apply for provision from his share for the children’s maintenance. It is clear that he acted with the clear intent of depriving you of your share in the property sold by him.

The fact that he did not serve you with his petition for the dissolution of your marriage is an even stronger fact to convince a judge to grant the extension to you. The law requires that you be personally served, and if this was impossible he would have had to obtain an order, upon his application to the court, for some other manner of service to be substituted for personal service.

You can go to the Supreme Court Civil Registry and do a search of the file of his divorce action in 2014 and see why you were not served and what he said in his documents to convince the granting of the necessary decrees for the dissolution of your marriage. They could have been obtained fraudulently if your husband had deceived the court. His divorce could be held to be null and void due to an abuse of the process of the court.

You can pay for copies of these documents in the file so that you can exhibit them in your affidavit in support of your application for extension of time to file your claim for the property declaration, division and sale of property action. The claim should also include your claim for your share in the proceeds of the sale of the land and the assets of the business, and for a ruling about his wrongful act/offence in acting as he did about the sale and proceeds thereof.

If his divorce is null, then time has not run against you. In any event, in my view you have more than an even chance of success to obtain an extension of time within which to file your claim for a declaration of your interest in all the family properties and the business, and also for provision for the children.

You may ask where would you and the children get your shares; well, you said that the house you occupied as your family home is rented out. You should place a caveat on the title so that he cannot sell it while your applications are being dealt with in court. You see, the court will make orders that your shares and a sum for the children’s maintenance should be taken out of this property. Or, it may be that it is ordered that the entire property be transferred to you and the children and for the registrar to effect the transfer into your names as proprietors of it.

Remember that your husband must also account for your share and his maintenance for the children from the rentals he has collected up to the date the judge makes orders on your applications and claim.

It is imperative that you get a lawyer immediately. Please do not waste time. This is for your future and that of your children. You cannot let this degenerate man get away with his unconscionable and dishonest deeds.

Act promptly by searching the file of his divorce action at the Supreme Court, get copies of the divorce file, get legal representation, and insist that your application be filed quickly. May God bless 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. All responses are published. Mrs Macaulay cannot provide personal responses.

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.