No matter how many times you read a statute, you are unlikely to appreciate the various ways in which its provisions can be interpreted until you are reviewing it with a specific set of facts in mind. Take the Property (Rights of Spouses) Act (PROSA), for example, which has only 24 sections. It is very easy to read it in its entirety, but it is hard to appreciate all of its nuances.
The case of Pasley v JRF (judgment delivered on May 17, 2012) drove home this point in my mind. In that case, the Supreme Court had to interpret Section 6 of the act. That section is commonly referred to for the fact that it establishes the 'equal share rule' between spouses in relation to the family home. It is also accepted that the equal share rule can be varied by Section 7 of the act if the court accepts that the marriage was of short duration, the property was acquired prior to marriage, or that the property was inherited by one spouse.
Section 6 (1) states that, "Subject to subsection 2 of this section and sections 7 and 10, each spouse shall be entitled to one-half share of the family home - (a) On the grant of a decree of dissolution of marriage or the termination of cohabitation ... ."
rule not applicable
In the Pasley case, the court was asked to consider whether, upon the death of one spouse, Section 7 had to be considered or not. Given the fact that Section 6 (2) states that, "Except where the family home is held by the spouses as joint tenants, on the termination of marriage or cohabitation caused by death, the surviving spouse shall be entitled to one-half share of the family home", the court ruled that Section 7 did not apply.
Section 6 (2) apparently creates an absolute entitlement to an equal share of the family home. If this is so, even if the marriage was of short duration, the house was owned by the deceased spouse prior to marriage or was inherited by him, the surviving spouse can rely on the equal share rule, without fear that it will be varied.
To the spouse, who suddenly felt relieved, here is the word of caution - statutes do not stand alone. Although PROSA seems to be clear on the issue, I anticipate that the same types of issues which arose in the case of Wills v Wills may be raised in response to a claim made in reliance on Section 6 (2). In other words, a spouse who waits to claim her half share of the family home until her spouse dies may still have to overcome an allegation that she may have abandoned her interest in that property if she had nothing to do with that property for 12 years.
The Pasley case also made it clear that a spouse seeking to rely on Section 6 (2) of PROSA will still have to take action to declare her interest in the property. The Learned Judge found support for this conclusion in reliance on the case of Wedderburn v. Capital Assurance Building Society Limited for the statement that, "until a declaration is made, the interest of the party who is not a registered proprietor is equitable". Apart from the fact that there are no conditions attached to Section 6 (2), which would lead to a variation in the equal share rule, the real difference between what a spouse would have had to do during the lifetime of her spouse and after he dies, is the defendant to the action. The defendant in the action under Section 6 (2) would be the executor or administrator of his estate or the beneficiaries of the deceased's estate.
It just stands to reason that each case will be determined based on its own facts, and the time spent conducting a further review of any legislation is never wasted.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to email@example.com or firstname.lastname@example.org on twitter @lawsofeve.