Tue | Aug 22, 2017

Laws of Eve | Difficult to vary the equal share rule

Published:Monday | June 26, 2017 | 6:08 AM

In some countries, when spouses separate, it is clear that all assets acquired during the marriage are to be shared equally, but that is not the case in Jamaica. Under the Property (Rights of Spouses) Act, only the family home is presumed to be owned by the spouses equally.

The family home is defined in Section 2 of the act as "the dwelling-house that is wholly owned by either or both spouse, and used habitually or from time to time by them as the only or principal family residence ... ." If that was the end of the matter, there would be very little to ever concern the courts.

Instead, Section 7 of the act sets out exceptions to what is commonly referred to as "the equal share rule" in respect of the family home, which allows either spouse to argue that it "would be unreasonable or unjust for each spouse to be entitled to one-half the family home". The section directs the court to take "into consideration such factors as the court thinks relevant", including:

(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.

During the almost 11-year history of the use of this act, there have been several cases in which the courts have been asked to vary the rule, and the majority of them have failed. In fact, the guidance from the Court of Appeal in the case of Stewart v Stewart [2013] JMCA Civ 47 is that Section 7 requires the person who is disputing the applicability of the equal share rule to apply for its displacement, the use of the word 'including' implies that the court is entitled to consider factors other than those listed in Section 7, and the equal share rule must be shown to be unreasonable or unjust; equally is the norm.

Another important statement from the judge in the Stewart case was that, "If a Section 7 factor is credibly shown to exist, a court considering the issue of whether the statutory rule should be displaced should, nonetheless, be very reluctant to depart from that rule."

Some examples of the court's findings since Stewart are set out below:-

- Clarke v Clarke [2016] JMSC Civ 45 - The court held that "disparity in financial contribution is just something that happens in ordinary marriages. On the contrary, it reflects a stark normality that would characterise a 31-year relationship."

- Chambers v Chambers [2016] JMSC Civ 12 - The assertion by the defendant that the property was acquired by virtue of his employment as a teacher, without any reference to becoming worse off financially by reason of the application of the equal share rule, resulted in a finding that no Section 7 factors existed on the basis of which to vary the rule.

- Marriott v Jackson [2016] JMSC Civ 108 - Both parties relied on unequal financial contribution of between five and 25 per cent as the bases on which the rule should be varied. The court held that, "This [was] not such an extraordinary difference that makes it unjust and unreasonable to not apply the equal rule." The question is whether this finding implies that a substantial inequality in financial contribution could ever be considered to be unjust or unreasonable of the purposes of a Section 7 application.

There is some hope for spouses who are relying on Section 7, and I will refer to some of the successful cases in next week's article.

- 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.