Thu | Dec 14, 2017

Laws of Eve | Property division in short marriages

Published:Monday | September 18, 2017 | 12:00 AM

Under Jamaican law, there is no system of community of property. In other words, ownership and contribution towards acquisition and maintenance of property still feature prominently when the courts are required to determine how property acquired during the course of a marriage or common-law union is to be shared. The only exception, of course, is the family home in which, by virtue of the provisions of the Property (Rights of Spouses) Act (PROSA), each spouse is presumed to have an equal share unless the marriage was of short duration, the property was owned prior to marriage or was inherited by one spouse.

In England, there is no equivalent statute to PROSA, and the case law shows that judges attempt to achieve fairness between divorcing couples. In many cases, fairness then translates to mean equal sharing of property. In some respects, therefore, the decisions of English courts in marital property division cases remain relevant to us in Jamaica, because the rules governing the division of all marital property, apart from the family home, remain similar.

 

DIVIDING ASSETS

 

The decision of the English Court of Sharp v Sharp [2017] EWCA 408 reviewed many of the leading cases that deal with division of marital property, especially in marriages of short duration. In Sharp, the husband and wife cohabited for approximately 18 months before getting married, and remained married for four years before getting divorced. The wife owned a home and some other assets before marriage. Their incomes during the marriage were about equal, and not all of their funds were commingled. Importantly, the wife, whose career spanned 20 years, earned very substantial bonuses during the marriage, which made her overall earnings far higher than her husband's.

At first instance, the husband conceded that the house and some assets that the wife owned before marriage were hers. The judge then shared the assets (valued at £45m) between the parties equally. The wife appealed, and the Court of Appeal overturned the first instance decision and reduced the husband's award by more than £700,000. He received a total award of £2 million comprised of £1.3 million, being one half of the aggregate of the two properties the couple owned, and £700,000, which reflected (i) the standard of living enjoyed during the marriage, (ii) the need for a modest capital fund to live in the property the husband was to retain, and (iii) some share in the assets held by the wife.

 

MOST SIGNIFICANT FINDINGS

 

- The equal-sharing principle does not automatically apply if there is no prenuptial agreement. In Jamaica, this may be relevant to property other than the family home.

- The wife's bonuses were not family assets because they had not been acquired through joint endeavour. It was coincidental that they happened to be paid during the marriage.

- Factors such as short marriage, no children, dual incomes and separate finance justify a departure from equal sharing in order to achieve fairness between parties.

- 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.