Mcgregor

Last week's article explored the factors a court is likely to consider when determining whether a house is the 'family home' for the purposes of the Property (Rights of Spouses) Act. This week, we take a look at another aspect of the act and the recent Supreme Court decision in the case of Stewart vs Stewart on the point.

Under the act (that came into force on April 1, 2006), a spouse is not only a husband or wife. The word is defined to include a single man (or single woman) who has cohabited with a single woman (or single man) as if they were in law, husband and wife, for at least five years.

Based on section 13 (1) of the act, a spouse is able to apply for a share of property, including the family home, if:

i) A decree of dissolution of marriage has been granted or the common-law couple stopped living together

ii) A decree of nullity of marriage is granted

iii) Husband and wife have separated and there is no likelihood of reconciliation

iv) One spouse is putting the property in danger through wilful or reckless acts of dissipation or mismanagement.

If one of the first three conditions is satisfied, the spouse must also satisfy the court that the application for division of property is being made no more than 12 months after they have separated, the marriage was annulled or dissolved. In the case of a common- law spouse, the application must be made within 12 months after cohabitation ceases. However, the court may allow for applications to be made outside of this 12-month period.

Stewart v Stewart

Mrs. Stewart faced two challenges when she applied for division of property in 2007 on the ground that she and her husband had separated and there was no likelihood of reconciliation.

The court had to determine whether Mrs. Stewart's application was made within 12 months after cohabitation ceased. After reviewing her evidence regarding the breakdown of the marriage, the judge ruled that the couple had separated either in 2004 or 2005. For this reason, it was held that the court could not hear the matter because the provisions of section 13 of the act had not been satisfied.

In fact, the judge went on to say that, because the parties had separated before the act came into force, the court could not consider an application by Mrs. Stewart to extend the 12-month period for making the application under the act.

Given such a ruling, one wonders what circumstances must exist before a court will extend the time within which a spouse can make his or her application under the act.