Sherry-Ann McGregor
IN A note to last week's article, you were advised that the Property (Rights of Spouses) Act came into effect on April 1, 2006, which means that applications can now be made to the court pursuant to that Act. So, this is perhaps an appropriate time to remind ourselves of some of the main features of the Act, and what category of persons are able to benefit from its provisions.
Under the old law (the Married Women's Property Act), only a husband or wife could apply to the Resident Magistrate's or Supreme Court for a determination as to interest in property. Many such applications failed where there was no evidence of financial contribution towards the purchase price of property. In addition, there was no legislative approval for married couples or persons contemplating marriage to enter into agreements for the division of property in the event of separation.
The old regime has been abolished and the following aspects of the new Act should be noted:
(i) It has created a uniform definition for spouse to include a single man or single woman who lived together with a single woman or a single man for at least five years as if they were in law husband and wife. Common law spouses are treated in the same way as married couples with regard to applications for declaration of interest in property. Helga Stoeckhert would have been able to apply for a share in Paul Geddes' property.
(ii) There is a presumption that each spouse has a 50 per cent share in the family home, which must be registered solely in one spouse's name or in their joint names. The presumption may be rebutted if there is evidence which entitles the Court to vary the 'equal share rule'.
(iii) Persons may enter into prenuptial and postnuptial agreements, as well as settlement agreements. You do not need to be contemplating separation or divorce for the Act to be useful.
(iv) Applications for declarations as to one spouse's share in property may be made to either the Resident Magistrate's, Family or Supreme Court, depending on the value of the property in dispute.
(v) Applications for the division of property to which either or both spouses are entitled may be made during the marriage or cohabitation or within 12 months after dissolution of the marriage or separation. These applications can only be made while both spouses are alive. However, if either spouse died after the application was filed the court may allow the proceedings to continue.
(vi) Transfers made in accordance with an order for division of property pursuant to the Act are exempt from transfer tax, which is usually 7.5 per cent of the value of the property.
(vii) Any transaction between spouses with respect to their property which is intended to defeat the interests of a creditor shall be void.
It will be very interesting to see how the provisions of this new Act will be utilised in the months ahead.
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
