Mcgregor

Below is an aspect of a question which was asked in response to my recent article on the subject. It has forced me to continue to look closely at the provisions of the Property (Rights of Spouses) Act ('the act').

The reader said:

H and W are married and lived together in Jamaica before H migrated. While W was unemployed, H sent remittances, some of which was used to construct a one-bedroom house on a property given to her by her mother.

W now has a common-law title for the property in her name and her son's. However, the common-law title was originally in the names of H and W. W has expanded the house using money she earned from her employment.

H and W have never lived together in the house and they have been separated for more than five years. W has applied for divorce and H wants to invoke the '50:50 rule' by saying that the house is the matrimonial home. W wants to know if H is likely to succeed in his claim.

Answer

The fact that H and W have never lived together on the property which he is attempting to acquire a 50 per cent interest is quite significant. The reason is that the 50:50 rule only applies to the family home. Each spouse is presumed to have a 50 per cent interest in the family home by virtue of the provisions of the act.

Therefore, if the property is not the family home, the 50:50 rule cannot be invoked. A property may be classified as the family home if:

The property is wholly owned by either or both of the spouses

Is used habitually or from time to time by both as the only or principal family residence

It is not a gift to one spouse by a donor who intended that spouse alone to benefit.

It would appear that H's reliance on the 50:50 rule will be unlikely to succeed because:

The property is owned by H and her son

H has never lived in the house, so it has neither been the habitual nor principal family residence for both spouses

The property was a gift to W from her mother. (It could be that W's mother intended that only W should benefit.)

Inference

This does not mean that H may not be able to maintain a claim against W for an interest in the property by virtue of his initial contribution towards the construction of the house. The fact that W had originally placed H's name on the common-law title as a co-owner could lead to an inference that there was an agreement or common intention for H to share in the property.

It should always be remembered that the act makes provision for spouses to apply for an interest in any real or personal property which is owned by either spouse or in which either spouse has an interest. Therefore, applications are not confined to the family home, and there are numerous factors which a court will examine in determining whether to declare that one spouse has an interest in property which is owned by the other; and that interest could still amount to 50 per cent.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.