Thu | Dec 8, 2016

Matrimonial property claim has to be reheard

Published:Monday | December 22, 2014 | 12:00 AM

Going through a court trial is a difficult experience for the litigants as well as the witnesses. What must be worse, however, is being told that the same trial must be done again.

This is the reality that faced the Chins in the famous case of Chin v Chin, that was tried twice before it was finally concluded 14 years after the proceedings first started. The same fate now faces the Lambies as a result of a decision in the Court of Appeal ([2014] JMCA Civ 45).

The basic facts in the Lambie case were that the couple met in the mid-1980s. By then, each owned separate properties, including one property at Farringdon Heights ('Farringdon') that was acquired by the wife in 1981. The parties got married in 1992 and the wife transferred the Farringdon Heights property into the names of herself and her son (from a previous union) as joint tenants in 1997.

After the wife commenced divorce proceedings in 2007, the husband filed applications seeking an interest in Farringdon on grounds that it was the family home and to overturn the transfer the wife had previously made (The son never became a party to the proceedings.)

facts in dispute

Most of the more important facts in the case were in dispute, including whether the husband contributed towards construction of the house at Farringdon, when the house was constructed and whether it became the family home. Despite that, the parties and the witnesses were never cross-examined to test their credibility.

The trial judge found in favour of the husband. He ruled that Farringdon was the family home, the husband had a 50 per cent interest in it and that the transfer from the wife to herself and her son should be set aside. On the wife's appeal to the Court of Appeal, the judgement was set aside, the son was added as a party to the proceedings and a rehearing before a different judge was ordered.

In relation to the first judge's finding that Farringdon was the family home, as defined in the Property (Rights of Spouses) Act, the Court of Appeal's comments on what is involved in resolving such an issue are quite helpful.

Of note, the court's finding involves a mixed question of facts and law. There is what was described as the 'ownership element' test - whether the property is 'wholly owned by either or both of the spouses', and 'the residence test' - whether the house 'was used habitually or from time to time by the spouses as the only or principal family residence'. Both tests must be satisfied for a property to qualify as the family home.

Although the wife succeeded on appeal, the fact that the matter has to be reheard, is unlikely to benefit any of the parties for several reasons, including the fact that the claim is already seven years old, and the husband died in 2009, while the appeal was still pending.

new trial

During the new trial, the husband's evidence will have less weight than that of other witnesses, because there will be no opportunity for it to be tested under cross-examination. Moreover, a second trial will come at an even higher cost to the litigants than the first one.

I suppose the critical lesson to be learnt from the Lambie case is that it is important for attorneys representing both parties, as well as the judge, to make an effort to have trials conducted properly the first time around. For that reason, case management is to be carefully conducted so that the important orders, such as the need for parties to be cross-examined are not omitted.

• Sherry Ann McGregor, partner and mediator from the firm of Nunes, Scholefield, DeLeon & Co. wishes all readers, "The joy of family, the gift of friends and the best of everything for the Holiday Season and the New Year". Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.