Candace Stewart, Legal Writer

One of the main objectives of The Property (Rights of Spouses) Act, 2004 which came into effect on April 1, 2006, is to make provision for the division of property belonging to spouses.

Ordinarily, when the word spouse is used no one needs to have it defined because it is understood by all to mean a husband or a wife. However, this act has extended its meaning to include a single woman who has cohabited with a single man for a period of not less than five years, or vice versa.

This extended definition of spouse is truly significant as persons in a common law relationship will now be treated in the same way as married persons under the act and the same procedure will apply to property disputes.

'Equal share rule'

The Act introduces what is called the 'equal share rule' which is a presumption that each spouse is entitled to one-half share of the family home on the grant of a divorce, the termination of cohabitation, the grant of a decree of nullity of marriage or where a husband and wife have separated and there is no likelihood of reconciliation.

So on the occurrence of any of these four circumstances each spouse will have an automatic right to 50 per cent of the family home.

It must be emphasised though that the equal share rule is only a presumption and like all presumptions in law it can be rebutted by evidence to the contrary.

Accordingly, the act gives the court the power to vary the equal share rule if it is of the opinion that it would be unreasonable or unjust for each spouse to be entitled to one-half the family home.

Spouses also have the right to apply to the court during the subsistence of the marriage or relationship whenever a dispute arises over property owned by either or both of them and the court can, if necessary, order that the property be sold.

Additionally, where one spouse is endangering the property or seriously diminishing its value, the other may apply to the court for a division of the property.

The court is empowered not only to make an order dividing the family home, but also any property other than the family home belonging to the parties.

Rule not automatic

In effect, no property is outside of the court's reach. However, in relation to commercial property, a business or stocks or shares, the 'equal share rule' presumption does not automatically apply.

In such cases, the party making the claim to a share will be obliged to produce evidence to the court of the contribution made in the acquisition of the property in order for the court to determine the share, if any, to which the party is entitled.

Another notable feature of the act is that it recognises the enforceability of prenuptial agreements.

Before the passing of the Property Rights law, Jamaica followed the conservative approach taken by the English courts that prenuptial agreements were not enforceable on the grounds of public policy as they undermined the institution of marriage.

However, the act makes it clear that prenuptial agreements made by persons contemplating marriage or cohabitation can and will be enforced as long as the guidelines set out in the act are followed.

The guidelines basically are that the agreement must be in writing and signed by both parties; each party must obtain independent legal advice before signing and that the legal advisor must certify that the implications of the agreement have been explained to the parties.

The act also recognises postnuptial and settlement agreements, long accepted methods of amicably resolving property rights disputes, as it states that spouses may, for the purposes of settling any differences that have arisen between them concerning property owned by either or both of them, make an agreement with respect to the ownership and division of their property as they think fit.

DunnCox is a law firm based on Duke Street, Kingston.

candace.stewart@dunncox.com