Sat | Nov 18, 2017

Laws of Eve | The equal share rule can be varied

Published:Monday | July 3, 2017 | 12:00 AM

In last week's article, I highlighted the fact that it is difficult to displace the equal share rule under the Property (Rights of Spouses) Act (PROSA) that entitles each married or cohabiting spouse to a one-half share in the family home, and this week I am sharing some of the success stories with you.

Although there is no closed group of factors that can be taken into account in determining whether it is unreasonable or unjust to apply the rule, there are not many cases in which an application to vary the rule has succeeded. Moreover, even if the court is satisfied that the rule should be varied, there is no specific guidance about the weight to be attached to each such factor. In other words, if a marriage is of short duration, to what extent should the equal share rule be varied? The answer lies in the exercise of the judge's discretion.

There is not yet a significant body of local case law that defines all the factors that may be taken into account or the weight to be attached to each factor. However, what is clear is that the burden of disproving the applicability of the Section 6 presumption is on the person who alleges that it would be unreasonable or unjust to apply it.

Below are some of the cases I found in which there were successful Section 7 challenges:

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. Owned it prior to this marriage. No one else had any legal interest therein. The parties were married for four years. The parties had no children together but the claimant's three children resided with them.

- 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.

- Kelly-Lasisi v Lasisi [2016] JMSC Civ 25 - The fact that the property was acquired before the marriage, as well as the fact that the marriage was one of short duration, led the court to conclude that it would be unreasonable and unjust not to vary the equal share rule. The claimant was awarded a 10 per cent in the property.

An important issue was addressed in the case concerning the computation of the period of a marriage in circumstances in which the parties cohabited prior to the marriage. One school of thought was that there is no legal basis for the court to take into account the period that the parties were cohabiting before the marriage and to include it in the calculation of the duration of the marriage, while the other was that the two periods should be merged. The judge found that the period of cohabitation prior to marriage should not be included in calculating the duration of a marriage.

From these cases, it is clear that ownership of the family home prior to marriage and the fact that the marriage is of short duration are the two most common factors that lead to variation of the equal share rule; but parties should always remember that the list of factors is not closed.

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