Sat | Dec 10, 2016

Prosa and limitation of actions

Published:Monday | September 29, 2014 | 12:00 AM

The Property (Rights of Spouses) Act ("PROSA") leaves the door open to spouses who are separated or got divorced to assert their interests in matrimonial property years after that separation or divorce with the court's permission.

However, even after the court has permitted that spouse to file the claim, the claim may be challenged by arguments that it has been made too long after the separation or divorce to be sustained.

It has become increasingly common for one spouse to argue that the other abandoned his or her interest in property by being absent for at least 12 years and displaying no acts of ownership. This follows the decision in the Privy Council in the case of Wills v Wills.

That argument was raised in a recent Supreme Court decision in the case of Cockings v Cockings [2014] JMSC Civ 126. The parties got married in 1973 and divorced in 1984. During those years, they had two children and purchased one property in both names. Subsequent to the divorce, the husband migrated to the United States, and another property was purchased in the parties' joint names in 1987.

Between 1985 and 2003, the wife remarried and the husband also remarried twice. The husband also had two periods of imprisonment in the United States, the first lasting for two years and the second for seven years. After the second period of imprisonment, he was deported to Jamaica. In 2005, the wife successfully overturned the fraudulent transfer of one of the properties and obtained an order that her (the wife) and the husband's names should be restored as joint tenant owners.

In 2011, 27 years after the parties divorced, the husband commenced proceedings against the wife pursuant to PROSA to claim his interest in the two properties. The wife challenged his claim by saying, among other things, that he had abandoned his interest in the properties. She said that she was in physical control of the properties while the husband was absent, and she acted as the only true owner during that time.

husband's exclusion

Although the Learned Judge found that the wife was in physical control of the properties, she also found that there was no evidence that the wife had displayed an intention to possess the properties to the husband's exclusion. Moreover, the way the husband and wife organised their affairs showed that they acted in concert to preserve the properties. For example, they secured a joint mortgage to repair one property and wrote a joint letter to add their children's names to the property. They also shared the rental proceeds.

Despite the fact that the husband successfully warded off the wife's challenge on the grounds of abandonment of his interest, he lost out in respect of one property in the end because he had signed a transfer of one property to the wife to achieve an illegal purpose. As the court would not allow the husband to profit from his illegality, the signed transfer was found to be valid and effective so that the husband ended up with a 50 per cent interest in one property and no interest in the other.

Effectively, defending that one spouse abandoned his or her interest in property can defeat a claim to an interest in property pursuant to PROSA.