F.A.Q.

Family Law

 

  1. When can I file for divorce?

Two elements must be satisfied before you can file for Divorce in Jamaica. First, you must be separated from your wife/husband for at least one continuous year. Secondly, you must have been married for at least two (2) years prior to filing for the Divorce. If you have not been married for two (2) years, an Application will have to be made to a Judge in Chambers at the Supreme Court of Judicature of Jamaica for permission to file for Divorce before the expiration of two (2) years.

  1. What documents do I need to facilitate my divorce?

The most important document to take with you to your Attorney-at-Law is your Marriage Certificate. The original document must be given to your Attorney-at-Law as he/she must file it in the Supreme Court of Judicature of Jamaica. Also, if children are involved, take along their Birth Certificates. If property is involved, take along a copy of the Title so that your Attorney-at-law can review it.

  1. What if my name is not on the Certificate of Title for the Family Home?

Notwithstanding that only one spouse’s name is endorsed on the Certificate of Title, if this property is the Family Home, there is a presumption that each spouse is entitled to one-half. To determine the respective interest of the parties the Court will consider the following factors:-

  1. a) Whether the family home was inherited by one spouse,
  1. b) Whether the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation;
  1. c) The duration of the marriage.

Land Transactions

 

  1. What taxes are involved in the sale/purchase of property?
  • Whether you are selling or buying property the following taxes are applicable:
  • Transfer tax (5% of value of property)
  • Stamp Duty (4% of the sale price)
  • Registration fee (.5% of the value of property)
  • Transfer tax is borne by the Vendor whereas Stamp Duty and Registration fees are shared equally between Vendor and Purchaser.

Other fees charged on a sale/purchase of a property are:

  • Cost for agreement for sale (not fixed)
  • Cost for letters of possession and letters to utility companies (not fixed)
  • Attorney’s fees- 3% of sale price

Please note that the above are subject to change and so it is always recommended that you consult with your Attorney-at-law to discuss the applicable fees.

  1. Do I need a lawyer when selling/purchasing property?

It is always advisable to seek legal representation when you are selling or purchasing property to ensure that your interest is properly protected. You are entering a contract with obligations and can be sued if you breach the terms. Lawyers are there to protect you and your interest.

  1. As a purchaser, what do I need?
  • Caveat search
  • Valuation report
  • Surveyor’s report to identify any possible breach of Restrictive Covenants
  1. What if a Surveyor’s Report shows a breach? How can this be rectified?

If a breach of Restrictive Covenant has been identified, then the following options exist:

  • If you are a Purchaser, you can request that the Vendor remedy the defect of Title,
  • The breach can be demolished, if possible,
  • An Application can be made to the Supreme Court of Judicature of Jamaica to modify the Restrictive Covenant in breach.
  1. What if I can’t find my Title?

If you have lost your Title, contact your Attorney-at-law immediately. They will prepare an Application for a replacement Title and will lodge same at the Titles Office. You must tell your Attorney-at-law how the loss or destruction occurred and the last time you saw the Title. Your Attorney-at-law will use this information to ground your Application for a replacement Title. If the Registrar of Titles accepts your Application, provisional approval is granted along with instructions to advertise the Application in the newspaper. The process can take anywhere between six to nine months.

  1. Can I put my minor child?

Yes, a minor can go on the Title.  However, where a minor is registered on Title, this will lock the Title and hinder dealings by the other adult owners until the minor becomes 18. Out of an abundance of caution, it is best to ask your Attorney-at-Law to ensure that a reservation clause is inserted to allow the adult owners to deal with the land until the child attains Adulthood.

  1. How do I evict a delinquent tenant?

The first thing to do is to contact your Attorney-at-law. He/She will prepare what is known as a Notice to Quit which must be served on the Tenant. Your Attorney-at-law will need a copy of the Title and will also need to be informed as to how the rental was paid and the nature of the Tenancy. This is critical as your Attorney-at-law must state the requisite notice period in the Notice to Quit which is determined by how rental was paid and the type of Tenancy that existed. After the expiration of the Notice to Quit, if the Tenant remains in possession, your Attorney-at-law will file a Claim in the Court seeking an order for vacant possession.

  1. I owe outstanding strata fees and the Strata Corporation is threatening to sell the unit, can they do this?

If the Strata Corporation has satisfied the Commission of Strata      Corporation’s that they have notified you of maintenance arrears in excess of thirty (30) days and of their intention to apply for a Certificate of Sale if the sums are not paid, then the Commission, if satisfied that proper notification of arrears was      given by the Corporation, can issue the relevant Certificate of Sale. The Corporation can thereafter proceed to sell the unit.

Personal Injury

  1. I have been in an accident and was injured. What do I do next?

Visit your Attorney-at-law and take along with you copies of all receipts, medical reports and particulars for the drivers/persons responsible for the accident. If you do not already have a medical report/police report your Attorney can assist you to obtain one. Your Attorney will review your matter to ascertain the extent of your claim. If he/she is satisfied that you have a valid claim he/she will firstly try and negotiate a settlement on your behalf. If negotiations break down, then a claim will have to be filed in Court to attempt to recover compensation on your behalf.

  1. Is there a time limit for filing a Claim for Personal injury?

A claim for compensation for personal injury must be filed within six (6) years from the date of the accident.

  1. What if a loved one dies as a result of an accident? Can a claim be brought?

The answer is yes. Your attorney will need to ascertain who the Dependents of the loved one are as well as to commence the Administration of the deceased’s estate. If the deceased had minor children, take along their birth certificates. You will also need to take copies of the deceased’s pay slips, post-mortem report and police report if applicable. We can assist you to obtain the post-mortem report and police report if you do not have one at hand. A claim on   behalf of the Dependents must be filed within three (3) years of the date of death and a claim on behalf of the Estate must be filed within six (6) years of the date of death.

 

Estates and Succession

  1. What is the benefit of having a will?

The death of a loved one is a very emotional time. It always assists   the family if the deceased made a will clearly setting out his/her  intentions. A will acts as a guide to the family and takes away  uncertainties of what is to be done to their assets and appoints persons known as Executors who are given the task of carrying out  the wishes of the deceased and distributing the assets in accordance with the terms of the will.

  1. Do I need an Attorney-at-law to prepare my Will?

You do not need an Attorney to prepare your will but it is always advisable to seek the assistance and advice of your Attorney in drafting your Will. This is because there are laws that govern the legality of a Will that your Attorney will know that you may not be aware of which if not followed could result in your will being invalid or a gift to a loved one being void. For example, if you leave a gift to your son or daughter under the terms of your will and they or they spouse are also a witness to your execution of the will, the gift to them is void and they will not benefit from this gift.

  1. What if my original will cannot be found after my death?

Your family should visit your Attorney-at-law immediately and discuss the possibility of them making an application to prove a copy of the will in the Court.

  1. What do my loved ones have to do if I die without a will?

You should contact your Attorney-at-law for guidance. If there are minor beneficiaries, the Administrator General for Jamaica ought to be contacted. They will act as the Administrator of the Estate. If no minors involved, then a spouse or child of the deceased can apply to be appointed as the Administrator of the Estate. The law sets out how the assets are to be distributed. See below table for guidance.

Spouse, children & parents One-half to Spouse and one-half to children in equal shares. If only one child, two-thirds to the spouse one-thirds to the child. Parents do not share in the estate.
Children & parents only Children take absolutely in equal shares (Parents do not share in the estate)
Spouse & parents only Two-thirds to spouse & one-third to parents (in equal share if both alive)
Parents survive, but no spouse Parents take absolutely in equal shares or single surviving parent takes absolutely.
If no spouse, children or parent The following persons below will take in equal shares in the following order to the exclusion of those in the lower classes:

  1. Brothers and sisters of the whole blood
  2. Brothers and sisters of the half blood
  3. Grandparents
  4. Uncles and aunts of the whole blood
  5. Uncles and aunts of the half blood
  6. The Crown (as Bona Vacantia)

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