Mcgregor

A reader writes:

W's husband, H, purchased a house in his name only before his marriage. After marriage, the house was expanded through joint financing from W and H. W even used her National Housing Trust (NHT) benefits to assist with the expansion. Her name is on the mortgage, but not on the title, and mortgage payments are made through combined resources. H has one child outside the union and W is concerned that H may leave the home to him. W wants to know how she canprotect her interest in the house if H does not add her name to the title.

Answer:

The following assumptions were made:

The house in question is the principal family residence.

H has already refused to add W's name to the title.

The Property (Rights of Spouses) Act provides the answer to W's concerns. Where the family home is wholly owned by one spouse, the act creates a presumption that each spouse is entitled to one-half share of that home in the event of separation or divorce. Therefore, W has a potential one-half interest in the family home and she has the power to take steps pursuant to Section 8 of the act to ensure that H, who is the sole owner of the family home, is unable to enter into transactions which may defeat her interest in that home.

These steps include lodging a caveat on the title pursuant to Section 139 of the Registration of Titles Act. If W lodges a caveat on the title, the Registrar of Titles will be obliged to warn her if H attempts to conclude a transaction which affects the title. Such transactions include the sale or mortgage of the home.

It is interesting to note that, on a first reading, Section 8 appears to act as an automatic safeguard, which does not require any active steps on W's part by stating that, "any transaction concerning the family home shall require the consent of both spouses". However, when the entire section is read, it becomes clear that W will have to take some active step to protect her interest. Otherwise, a person who purchases the home from H may be able to assert that he was not aware of W's interest.

If that should occur, the saving grace is that W will still be able to bring an action against H to get the value of her share in the family home from the proceeds of the sale.

If a purchaser enters into a sale transaction with H, knowing that W needs to consent to the transaction and that she has not given her consent, the entire transaction may be set aside by the court. This will mean that the property would revert to H and any money paid to H would have to be returned to the purchaser.

A caveat will not prevent H from leaving the property to his child under the will. However, W has a right to challenge that will on the ground that H did not made reasonable financial provision for her. This could mean that the home would have to be sold and the proceeds shared between W and H's son. This would also be the result if H dies without leaving a will.

It is often said that the best form of defence is an attack. So, W would be well advised to take the necessary steps to lodge a caveat unless H is prepared to acknowledge her interest by putting her name on the title.

This article should not be treated as a substitute for advice from your attorney-at-law.