Before one becomes ‘entitled’, you must first apply to the court for a declaration that you are the common-law spouse. It is advised that you retain the services of an Attorney-at-Law for this procedure and to discuss your options based on the circumstances of your case.
The Property (Rights of Spouses) Act defines the “family home” as the dwelling-house that is wholly owned by either or both of the spouses and used habitually or from time to time by the spouses as the only or principal family residence. It does not matter that one person purchased the property without any financial input from the other, once it was purchased as the family home, there is a presumption by law that you are entitled to 50 per cent of the current market value of the property. The Judge on your application, can make orders for it to be sold either at auction or privately, and that the net proceeds be divided between you in the percentages declared by the court.
When the Judge is considering what you are entitled to in terms of other properties (not the family home) and assets, all the work you have done for the family and the expenses you have incurred will be taken into account to assist the court to make a fair decision about your respective percentages in the assets.
As the common-law spouse you are entitled to apply for maintenance if necessary. Maintenance orders may be made in circumstances in which the court is satisfied that one spouse cannot practicably meet all or any part of his or her needs, and the amount ordered will be such sum as may be necessary to meet the reasonable needs of that spouse. Maintenance orders may require periodic (for example, weekly, monthly) or lump-sum payments to be made; and in the case of periodic payments, the court may order the payments to continue for such period as it considers just.
It should be noted that section 7 of the Maintenance Act (2005) clearly states that one spouse will not be liable to make maintenance payments to another, if that other spouse marries someone else or is cohabiting with someone else; and any prior maintenance order will cease to have effect if either of those events occurs.
If you are considering to make an application to the Courts for a declaration, division of property or maintenance as a common-law spouse, you need to have this done within twelve (12) months of separation from your spouse as stated under the Property (Rights of Spouses) Act and the Maintenance Act, unless a Judge allows you to apply after a longer period after separation.
Abi-Gaye White-Thomas B.A., LL.B (Hons)