Dad walked out, mom needs support

Dear Mrs Macaulay,

My partner and I were not married, but we were living together for nine years, and had been together for 12. We have two children. He moved out seven months ago, and now I am a stay-at-home mom. How can I get maintenance for myself and the kids, as things are pretty hard on me.

The Maintenance Act defines “cohabit” as living together in a conjugal relationship outside marriage. You and your ex-partner clearly fall within this definition. It also defines a “spouse” as including a single woman who, for a period of not less than five years, has cohabited with a single man as if she were in law his wife, and the same goes for a man. I trust that you both were “single” while you cohabited together for the nine years as you have stated that you did.

You therefore fall within the description of a common-law wife, as you cohabited for over the five-year qualification period. In this case, you are entitled to apply for such a declaration of your status and in the same application, for both maintenance and for division of property if he has any — real estate, land with or without a house, personal property, a motor vehicle, furniture, appliances, bank accounts, insurance, and the like.

As for your two children, they are entitled to be maintained by their father and his legal obligation to do so is unquestionable, even if you were not indeed his ex common-law spouse. You must make a separate application for the court to order that you have sole legal custody, care and control of them, and to make specific orders for each, for the maintenance which their father must pay weekly or fortnightly or monthly for their respective needs, and for his access to them. You must take to the court certified copies of their birth certificates and a detailed list of everything that you have to provide for them, including cost of housing, for utilities, for food, for their health, for clothing, etc. So prepare the list and the monetary costs for each, and take that with you to the court.

You must do the same for your needs, also. For your application for maintenance, you can include it in your application for the declaration of your status as a common-law spouse, and add your application also for the division of his property. You should also take a witness with you, who knows your relationship history with him and can state so in an affidavit and give evidence of it in the court, especially about when you started living together and when it broke up with him leaving you and the children.

It is good that you have written after only seven months. You must go to the Family Court which serves the parish in which you and the children reside. You do not have to pay any fees to this court. A clerk of the court will assist you and prepare your application, but tell them what I have said that you should apply for:-

1) An order of sole custody, care and control to you, maintenance for each child, and to fix specific terms of his access.

2) A declaration that you and he had been cohabiting as man and wife for nine years, and that you were common-law spouses until he terminated the relationship

3) An order for division of his property if there are some in existence and which are subject to such division.

4) And for an order that he provides maintenance for you for such a period of time as the court deems just, while you are forced to be a stay-at-home mom, in a sum which the court deems just and necessary.

The matter of his access to the children is necessary as they must not be deprived from having a relationship with their father during his and their lives.

I have mentioned the fact that you say the relationship ended seven months ago, because in relation to the application for a division of property under Property (Rights of Spouses) Act, it requires such applications to be made within 12 months of the termination of cohabitation, otherwise you would need to add an application for the court to allow your application after the 12 months have passed.

So please get to your Family Court as soon as possible, so your ex can meet his legal and moral obligations to maintain you and your children.

I also suggest that at court, you ask for the maintenance monies to be paid by him to the court’s collecting officer. This prevents any face-to-face upsets and quarrels about how much and when he makes payments to you, as the records will be in the court, and if he defaults, the evidence is right there for the court to issue a warrant for him to be brought to make up his payments and explain why he is in arrears.

This should help to lessen the stress you and your children must be struggling with in your daily lives. Your ex will not do what he is obligated in law to do, unless you do what you must for your children and for yourself, and force him to do so. As you know, when the orders are made and if he disobeys them, he could land in jail.

All the very best.

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.