Legal Eagle : Protecting properties while in relationships
Sybil has risen from rags to riches. She grew up in a poor family in rural St Mary. In the last 25 years, she moved from her quiet riverside district in St Mary to a posh neighbourhood in St Catherine. Her several businesses have done well. She is now very comfortable and she is very happy that her children are all adults.
Thinking about the future, this shrewd businesswoman now wants to give some of her assets and wealth to her children, especially her youngest daughter, 'R', who has been living with her boyfriend for the last six years. Her daughter's boyfriend does not have a steady job. He spends several hours working out in the gym each day, but he finds time to do most of the household chores, including cooking, gardening, washing and taking care of their son, Kris.
Sybil understands that her daughter and her boyfriend are planning their wedding, so she wants to know how best to protect properties and money she wishes to give to 'R'.
First, Sybil can make a will and/or create a trust and leave whatever she has for any of her children, but that is not ideal, as the will takes effect after her death. Sybil also has the option to use a living [inter vivos] trust, but she is not in favour of a trust. However, since her daughter is contemplating marriage, it might be wise to look at the law touching and concerning property rights among spouses. This law is called the Property (Rights of Spouses) Act, 2004 [the Act].
The object of the act is to provide for the division of property between spouses, who are defined in the act as a man and woman who are both unmarried and who have cohabited together as if, in law, they are married for a period of not less than five years. Property is given a very wide definition in the act to include any real or personal property or any right or interest in property to which the spouses are entitled.
In relation to the family home, the act provides that except where it is held as joint tenants on the death of one spouse, the spouses are entitled to a one-half share on the termination of marriage or cohabitation caused by death or on separation, if there is no chance of reconciliation. However, on the application of an interested party, the court may make orders to vary the equal share rule in circumstances where the court believes it is unreasonable or unjust.
In light of the above, Sybil's concerns for her daughter can be addressed by Part lll of the act, which provides for spouses, persons in contemplation of marriage to each other or two persons cohabitating to contract out of the provisions of the act by making agreement for the ownership and division of properties as they think fit. Agreement made must be in writing and witnessed by a justice of the peace or an attorney-at-law. In addition, among other things, the parties must independently obtain legal advice.
So, here is what Sybil is advised to do. First, she should discuss with and bring to 'R's' attention the fact that the law allows her to make arrangement, in contemplation of marriage, to contract out of the act in order to protect properties she wants to give to her now. Second, once the contract is fully executed and is compliant with the relevant provisions in the act, Sybil can proceed to transfer the properties, to include money to her daughter.
In this era of frequent separation and divorce, men and women in unions need to utilise Part lll of the act in order to protect their properties, and consequently reduce litigation time and costs. Once more, "a word to the wise is sufficient".