Sun | Sep 24, 2017

Scope for variation of equal share rules still unpredictable

Published:Monday | February 8, 2016 | 2:00 AM

Almost 10 years after the Property (Rights of Spouses) Act came into effect, some aspects of its operation are now relatively predictable; because case law has now helped to make things clearer. However, at least one aspect of PROSA seems destined to remain a mystery.

Below, I have identified six expected outcomes of PROSA:

1. A dwelling house that is owned by one or both spouses in which a married or common law couple cohabits is the family home.

2. The starting point for determining the couple's interest in the family home is the presumption that each spouse has a 50 per cent interest.

3. The couple's interest in the family home may be varied if one, or more, of the three factors set out in Section 7 (1) of the act is proven.

4. Although PROSA does not define what a marriage of short duration is, in three Supreme Court decisions, that period has been set at five years.

5. Although a claim to an interest in property should be commenced within 12 months after cessation of cohabitation or termination of a marriage, the court will consider an application to extend that time period whether the application is before or after the claim is filed.

6. Some aspects of PROSA have retrospective effect; so it can be relied on even if cohabitation or the marriage ended before the act came into effect.

Perhaps the most unpredictable aspect of PROSA relates to the application of Section 7 (1), which states as follows:

Where in the circumstances of any particular case, the court is of the opinion that it would be unreasonable or unjust for each spouse to be entitled to one-half the family home, the court may, upon application by an interested party, make such order as it thinks reasonable taking into consideration such factors as the court thinks relevant, including the following:

(a) that the family home was inherited by one spouse;

(b) that the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation;

(c) that the marriage is of short duration.

The following cases demonstrate that the surrounding facts and the exercise of the judge's discretion make all the difference in the outcome of the case:

• Graham v Graham [2006] HCV 03158 (judgment on April 8, 2008) - The wife's interest in the family home was reduced to 40 per cent because the court found that the contribution by the husband's extended family towards the cost of expanding the family home entitled him to a greater interest in it.

Gardner v Gardner [2012] JMSC Civ. 54 - In a marriage that lasted four years in which the husband owned the family home prior to the marriage, the court awarded the wife no interest in the family home.

• Stewart v Stewart [2013] JMCA Civ. 47 - Where none of the three factors outlined in Section 7 (1) exists, the Court of Appeal ruled that "contribution to the acquisition or maintenance of the family home, by itself" was not a factor that would cause the equal share rule to be varied. The equal share rule was enforced.

• Collie v Collie (Unreported) Claim No. 2013 HCV 5949 - The parties cohabited prior to a marriage that lasted less than two years, the family home was acquired by the wife prior to the marriage and was substantially improved using only her resources. Two of the three factors existed to justify variation of the equal share rule. However, the husband's financial contribution towards installing air-condition units, tiling the patio, paving sections of the yard and other general maintenance earned him a 20 per cent interest in the family home.

Even if the court assigned a value to each of the three factors listed in Section 7 (1), the fact that the section states that the court may "make such order as it thinks reasonable" means that there will always be an element of discretion which will make the outcome of a challenge to the equal share rule unpredictable.

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