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Important pointers to note in property-division matters

Published:Monday | May 11, 2015 | 5:00 AM

By the time most married couples get to the point of making spousal maintenance or property division claims, they find it difficult to recall what exact contributions each had made towards the acquisition of property or the detailed description of the assets owned by each spouse. That leads to imprecise and often sparse evidence being placed before a judge who is asked to determine such claims.

Those were some of the matters raised in the Privy Council judgment in the case of Bromfield v Bromfield [2015] UKPC 19. In fact, the judgment provides useful guidance as to how to avoid some of the pitfalls that plague litigants in property division and spousal maintenance claims. Below are some points to note:

1 A successful claim to a beneficial interest in property will reduce a claimant's entitlement to maintenance. The reason is obvious, since a person who has greater beneficial interest in property is more likely to be able to maintain himself or herself.

2 The fact that a spouse is a shareholder in a company that owns property does that mean that the spouse is the owner of that property. Except in limited circumstances, a company is separate from its shareholders and its property belongs to it and not to its shareholders.

3 Where one spouse is deliberately withholding information concerning his income and expenditure from the court, the court can seek to obtain the information in various ways, such as ordering disclosure of specific documents, order that answers be provided to questions, issue witness summonses to parties for them to give oral evidence and/or documents.

4 Fair maintenance provision can only be ascertained if the approximate size and nature of the parties' assets are known.

5 When a judge has determined each spouse's beneficial entitlement to property; before ordering the sale of that property, the judge ought to afford the

parties an opportunity to comment on what they wish to do with the property. For example, if one spouse is residing in a property to which both are beneficially entitled, that spouse may wish to continue living there or to acquire alternative accommodation.

6 Where there are other legal owners of a property, apart from the two spouses, before ordering the sale of that property, a judge ought to consider whether the other owners would be likely to consent to a sale.

7 Many factors go towards determining an application for spousal maintenance. The legal obligation of the person responding to that application to provide support for some other person is merely one of those factors.

8 After a hearing has been concluded in one court, and a judge has made findings of fact, it will be extremely difficult to successfully appeal that ruling unless there are "exceptional circumstances ... [such as] a miscarriage of justice or a violation of some principle of law or procedure".

In the Bromfield case, the Privy Counsel dismissed the appeal in relation to matrimonial property, allowed it in relation to the maintenance claim and ordered the re-hearing of that application in the Supreme Court.

• Sherry-Ann McGregor is a partner and mediator in the firm of Nunes Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.