For every reader who has struggled to commence a claim under the Property (Rights of Spouses) Act because the assets of your spouse cannot be identified with certainty or their whereabouts are not known, this week's article presents a ray of hope.
In May of this year, an application was heard and determined in the Supreme Court in the case of Chang v Chang. Mrs Chang commenced proceedings against her husband from whom she has been separated for four years for a declaration of her interest in several properties pursuant to the Property (Rights of Spouses) Act. She identified and listed some assets and sought an order from the court requiring Mr Chang to identify and disclose "full particulars of [his] property, the nature and full value of assets both real and personal whether within the jurisdiction, or outside and their whereabouts and whether the same are held in his own name or held jointly with others or held by nominees or otherwise on his behalf".
Mr Chang resisted the application and his attorneys argued that some properties were outside the jurisdiction of the Jamaican court, others were inherited by him and still others had been acquired after the couple separated; and that they were, therefore, not relevant to Mrs Chang's claim and did not need to be disclosed.
It was necessary to consider the definition of 'property' under the act, which is said to be all property to which either spouse is entitled. The learned judge was of the view that this definition was so wide that there was no limit on the quality of the asset (real or personal), where it was located or when it was acquired. This meant that Mr Chang's objection could not stand, because all of his property was relevant to the claim under the act.
Limited her purview
The learned judge made it clear that the application limited her purview to the question of whether the assets were relevant to the issues in the claim. Therefore, the fact that the order for disclosure was made did not mean that Mrs Chang's claim to an interest in all of the properties would succeed. Mrs Chang will still have the burden of proving that she contributed to the "acquisition, conservation or improvement" of the property if she is to succeed in her claim to an interest in them. What Mrs Chang's application did was to ensure that she could carefully consider all assets owned by Mr Chang and pursue a claim in respect of those assets in which she stood the best chance of being declared to have an interest.
Applications for disclosure are always useful in helping parties to ensure that all relevant material is placed before the court; and it is a particularly useful way to unearth hidden assets in matrimonial proceedings.
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, Delon and Co. Send Feedback and questions to firstname.lastname@example.org or email@example.com.