Laws of Eve: Challenges in providing matrimonial property claims
Throughout the course of many marriages or common-law unions in Jamaica, couples acquire property without obtaining titles for those properties. The reason for this are varied. The most common in rural communities are the prevalence of 'family land' arrangements or the fact that money changes hands but no agreements or receipts are drafted.
In an ongoing relationship, formalities are often ignored. However, when the relationship sours and court actions ensue, the absence of titles for properties or paper trails to prove the existence of transactions becomes a serious challenge for the parties and the courts.
That scenario actually played itself out in the Court of Appeal judgment in the case of Gibbs v Stewart  JMCA Civ 14.
The couple allegedly acquired two properties and a business during the course of their relationship, but the business was not a formal, structured one, and the ownership of the properties was proved by titles. Against that background, the judge in the Supreme Court declared that the couple had equal interests in the business and both properties, and made consequential orders for the valuation and sale of the properties.
On appeal against that judgment, the Court of Appeal found in favour of the wife (appellant) in respect of the properties, but upheld the decision regarding the business. Some of the important issues determined in the Court of Appeal are as follows:
1. Where the parties could only prove that they had a leasehold interest in property, it was not appropriate for the court to make a finding in relation to the entire beneficial interest in the property. The Court of Appeal ruled that the husband had a 50 per cent interest in the leasehold estate.
2. Where neither spouse can prove that the legal title to a property is vested in him or her, the court will have to investigate ownership of property before making a ruling.
3. If the title to property in dispute is not registered in either spouse's name, the registered owner of that property is to be a party to the court action if the matter is to be fairly determined.
4. If one spouse is claiming an interest in property that is owned by the other and a third party, "natural justice and fairness demand" that such a party should be notified of the proceedings and joined as a party so that he or she has an opportunity to make representations before any decision adverse to that party's purported interests is made.
In the end, the Court of Appeal did not disturb the order in relation to the business, adjusted one order to reflect the fact that all the parties had a leasehold interest in one property, and allowed the appeal in respect of the second property. In relation to the last order, the court ordered that the issue be retried after all interested parties become parties to the action.
I cannot help but think that the parties could save time and money by going to mediation rather than retrying the final issue.