What’s love got to do with it?

I would like to take this opportunity to welcome you to Legal Runnings, a weekly column tailored to answering your legal questions that will be published this and every Monday.

This column is geared towards helping ordinary Jamaicans better understand legal issues that impact their daily lives. In it, I will answer questions posed by readers seeking a legal opinion.

"My partner of 15 years sadly passed away two weeks ago without leaving a will. We had been living together for the past 11 years, although he was still married. The marriage between him and his wife had broken down long before we met and started dating, however, he did not get a divorce because he felt that it was not necessary. We loved each other so much and it was because of this why I did not press him to do so. My partner owned two houses, one of which we shared, while his wife occupied the other in May Pen. He owned a car and we had joint accounts together as well as other assets. The issue that I have is primarily with the house that I live in, as my name is not on the title. Please advise how to go about transferring this house and any other of his assets in my name." - SJ

Dear SJ,

When a person dies without leaving a will, he is considered to have died intestate. The Intestate's (Testate and Property Charges) Act is the piece of legislation that governs intestacy in Jamaica. The act also dictates how the deceased's property will be administered. The obvious disadvantage here is that the deceased will have no say in how his assets are distributed and to whom. Instead, the act lays out in the order of priority, who can make the application and determines who gets what.

Firstly, to determine if you have any legal rights to any property belonging to your deceased partner's estate, we must determine if you fall within the ambit of the act. The person who stands highest is the surviving spouse of the deceased. While the act clearly recognises surviving wives and husbands, it also recognises common-law unions as it defines spouse "as a single woman who has lived and cohabited with a single man as if she were in law his wife for a period of not less than five years immediately preceding the date of his death".

In order to be considered under the act, an order declaring you a spouse must first be obtained from the court. This is done by way of an application for a declaration of a common-law spouse, which is supported by affidavit evidence from you the applicant as well as from two or more persons who can speak to the fact that they both knew you and the deceased to live as man and wife for a period of five years or more prior to his death. As a matter of practice, we often suggest getting supporting evidence from both sides of the family, that is, from the applicant's side of family as well as that of the deceased.

Although you may have lived with your partner as if you were, in law, his wife for a period of five years or more, the act states that it must be a single man or woman. This means that your partner must either be unmarried, widow, widower or a divorcee. Unfortunately, the fact that you stated your partner was still married at the time of his death simply means that under the law, he is not a single man and as such, his wife stands to benefit in that capacity. Despite you and your partner being in a relationship for several years and as you stated, really loved each other, you have no claim to any of his assets.

If Tina Turner were to ask, "What's love got to do with it?" The sad truth is, nothing.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. Marston may be contacted via email Odanemarston@gmail.com or telephone 876-999-5391. This article is for general information purposes only and does not constitute legal advice.