In pursuing civil claims, litigants always have to be mindful of the date their right to commence proceedings in court arose so that they can ensure that the claims are brought within the time frame to pursue their claims. That window of opportunity within which to bring a civil claim is called a limitation period.
In many cases such as personal-injury claims, once that limitation period has expired, it cannot be extended. However, in some cases, such as fatal-accident claims brought under the Fatal Accidents Act, the court has the power to extend the time frame within which to commence the claim. The latter category of claims also includes claims under the Property (Rights of Spouses) Act (PROSA).
According to Section 13 of PROSA, a spouse's right to commence proceedings for division of provision can be triggered by one of four events - the grant of a decree dissolution of a marriage or cessation of cohabitation, a grant of decree to nullify a marriage, separation of a husband and wife without any reasonable likelihood of reconciliation, or where one spouse is endangering property. In respect of the first three triggers, a claim must be filed in court within one year after the trigger unless the court grants an extension within which to bring the claim.
The judgement of the Court of Appeal in Saddler v Saddler (2013) JMCA Civ 11, has made it clear that a spouse who has not filed his/her claim under PROSA in time, has the option of either first applying for an extension within which to pursue the claim, and then filing the claim once that order is granted, or filing the claim and then seeking to obtain an order to extend time to validate the irregularly filed claim.
In the case of Smith v Service (2013) JMSC Civ 78, the judge examined the Court of Appeal decisions in relation to extension of the limitation period in matrimonial property claims and stated at paragraph 13 that there is authority to support the position that "limitation defences under PROSA should be upheld unless there is good reason not to. The court's starting point then should be in favour of the defence when it is raised and that benefit, which accrued to the defendant, should only be taken away on good reason being shown."
The following guiding principles will assist any spouse facing such an application:
The applicant must "place before the court reasons to be evaluated by the court to justify his right to do so. Such reasons should explain the delay in filing the claim" (Allen v Mesquita (2011) JMCA. Civ 36 at paragraph 44).
From the case of Brown v Brown (2010) JMCA Civ 10, at paragraph 77, "All the judge is required to consider is whether it would be fair (particularly to the proposed defendant, but also to the proposed claimant) to allow the application to be made taking into account the usual factors relevant to the exercise of a discretion of this sort, such as the merits of the case (on a purely prima facie basis), delay and prejudice, and also taking into account the overriding objective of the Civil Procedure Rules of 'enabling the court to deal with matters justly' (rule 1.1 (1))."
From Mesquita, at paragraph 18, "The court, in exercising its discretion for an extension of time, is required to take into consideration such factors as the length of the delay, the reasons for the delay, whether an applicant has a claim worthy of a grant of an extension of time and the question of prejudice to the other party."
Ultimately, knowledge of the triggers which can give rise to a claim under PROSA should empower the litigant to avoid having to make an application for extension of time within which to file a claim for division of matrimonial property, because the court has the discretion to refuse to grant that extension.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to firstname.lastname@example.org or email@example.com on twitter @lawsofeve.