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Court rejects property claim based on length of marriage, occupancy

Published:Sunday | June 14, 2015 | 12:00 AMMcPherse Thompson
The Supreme Court building at King Street, Kingston.

A Supreme Court judge has determined that an estranged wife trying to claim half of the value of the matrimonial home was not entitled to it because the marriage did not last long enough.

The parties, Gregory Duncan and his wife, Racquel, got married on November 12, 2006, lived together in Hellshire, St Catherine, and had three children.

However, they moved from the premises to live elsewhere on January 28, 2008 and ceased cohabiting in September that year, according to the decision of Justice David Batts who heard the application. The house was sold in 2010.

Justice Batts rejected Racquel Duncan's claim to an interest in the property, having found that it was not the family home at the time of the couple's separation, that her husband already owned the house at the time of the marriage, and that the marriage was of short duration.

He did not outline what marital period would have been acceptable.

However, following the logic of the New Zealand Property (Relationships) Act of 1976, another judge, Justice Carol Edwards - in a case determined in 2012 and cited by attorney-at-law Gordon Steer who represented Gregory Duncan - noted that, in the Jamaican context, any marriage of less than five years would be a marriage of short duration.

Raquel had asked the court to have Duncan pay more for child support as well as spousal maintenance, and for the court to declare that she had an interest in the Hellshire property.

She also wanted Duncan to purchase a house and a motorcar, and make lump sum payments of $2.52 million and $600,000 as maintenance for their children and herself, respectively, for 24 months.

In considering the application for the division of the property, Batts said he was guided by the Property (Rights of Spouses) Act, which 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 ... and used wholly or mainly for the purposes of the household".

Can it be said they "habitually or from time to time" used the premises "wholly or mainly for the purposes of the household?" Justice Batts asked.

He said, having moved out, there was no evidence the couple ever returned to stay or reside at the house or that possessions were stored or retained there. The evidence suggested they no longer resided there at the date of separation, said the judge.

In short, it was no longer the principal family residence, he concluded.

Steer argued that it was implicit in the definition provided by the act for family home that the parties must have lived together as man and wife in the house immediately before their separation.

He contended that the property would have been a past residence of the parties as they had moved elsewhere during their relationship.

The attorney argued that, even if the court accepted that the property was the family home, Section 7 of the act should be applied - the relevant consideration being whether it was inherited by one spouse, was already owned by one spouse at the time of the marriage or the beginning of cohabitation, and if the marriage was of short duration.

Attorneys Deneve Barnett and Terry-Joy Stephenson, who represented Racquel, argued even though the marriage was of short duration and the property was acquired before the marriage, it was not unreasonable for her to receive one-half interest in the family home.

Racquel did not contribute financially to the household during the marriage, but that did not factor in the judge's decision on the property claim, who said it was a reasonable expectation in a household with children.


Equal-share rule

"I regard as highly significant that the respondent bore three children for the petitioner in the course of this short marriage," he said.

"In all the circumstances, and had the said property been the family home at the material time I would have departed from the equal share rule, which on the facts of this case it would be unreasonable and unjust to apply (as per Section 7)". Batts said he would have awarded Racquel a one-third share of the property.

He otherwise ruled that Gregory - as the sole director and shareholder of Global Designs and Builders and based on evidence of ongoing business at the firm - could afford to pay child support and purchase a car, but denied the application for him to purchase a house for his wife and children, and pay spousal maintenance for Racquel who is now employed.

It was clear, the judge said, that a motorcar would greatly alleviate the burdens his wife faced in getting the children to school, and would reduce her dependency on him and enhance the well-being of their offspring.

The judge then ordered that, unless Gregory purchased and delivered a car to Racquel by August 31, then the monthly child payments should increase as of September 1.

He also ordered that the names of both parents be endorsed on the documents as owners, that the car be delivered to Raquel for her personal use and for transporting the children, and that both parents share equally the cost of insuring and maintaining the car, but that the cost of petrol be the sole responsibility of Racquel.

The judge also turned down the application for Gregory to make a lump sum advance payment, saying that while he or his company Global Designs has fairly substantial assets, principally in real property, the evidence suggests some of those are mortgaged.

"It would be unreasonable to put him in a position where he would be forced to borrow sums to make advance payments of maintenance. I do not find, in any event, that said lump sum is necessary for the children's continued welfare. The petitioner was, on the evidence, a responsible father who did provide for his children. I expect that he will continue to do so," Justice Batts said.


UPDATED: This story has been updated to reflect that the application was for additional child support.