Mon | Dec 10, 2018

Laws of Eve | Interest in the family home is not a guessing game

Published:Monday | October 8, 2018 | 12:00 AM

The outcome of family proceedings is largely unpredictable because the frequent reminder is that each case must be decided on its own facts. For this reason, while previously decided cases provide assistance to the court in determining how various aspects of relevant legislation have been applied, the court's decision will rest on the application of the law to the peculiar facts of the case in question.

Perhaps one of the most troublesome areas to provide guidance on is the court's power to vary the equal-share rule in keeping with Section 7 of the Property (Rights of Spouses) Act. Section 6 states that each spouse shall be entitled to a share in the family home, but Section 7 provides for those interests to be varied if "the court is of the opinion that it would be unreasonable or unjust for each spouse to be entitled to one-half of the family home". Section 7 then goes on to state three factors that could trigger that variation, but makes it clear that the listed factors are not exhaustive by using the word "including" when listing them. The factors are (1) ownership of the family home by one spouse prior to marriage, (2) family home inherited by one spouse, or (3) marriage of short duration.

What the act does not do is weigh the factors or attempt to indicate the extent to which the equal-share rule is varied when any one, or some combination, of them is found. That issue is left entirely to the judge's discretion, and his assessment of what may be reasonable in the circumstances.

I combed through the decided cases, and I can confidently say that there is no pattern that helps us to predict what the outcome is likely to be when one of the Section 7 factors is found; except to say that there will be a variation. Conversely, if no Section 7 factor exists, the equal-share rule must be applied. By extension, the spouse who is claiming an equal share will not get 50% interest in the family home if any of the Section 7 factors exist, but is also unlikely to be awarded no interest in that property.

The judgment in the case of Davis v Davis [2018] JMSC Civ 99, which was decided on June 29, 2018, included a detailed review of the Section 7 factors, particularly where the property was owned by one spouse prior to marriage, and its effect of the parties' interests in the family home.

After finding that the family home was owned by one spouse prior to the marriage, the court was influenced by:

- The fact that the marriage was of long duration - 24 years.

- Both parties contributed towards the renovation of the home.

- Both parties made mortgage payments.

- The fact that the manner in which the parties organised their affairs during the marriage partnership enabled the owner of the family home to acquire other property during the marriage.

The court then varied the equal-share rule and awarded the owner of the family home 62.5% interest and the other spouse 37.5%.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.