BY JULIAN RICHARDSON Assistant business co-ordinator firstname.lastname@example.org
WITH divorce rates on the rise in Jamaica, couples increasingly have to brace themselves for the economic fallout which may occur when the bonds of matrimony is dissolved.
In fact, the number of divorces have risen significantly in Jamaica within the last decade -- increasing by 50 per cent from 1,106 cases in 2000 to 1,654 cases in 2008, according to the Statistical Institute of Jamaica. And each new case brings with it the possibility of a ruling which can significantly impact the finances of two individuals.
To help readers understand more about the complex issue of divorce settlements, Sunday Finance sought the expert advice of family and conveyancing attorney Andrea Moore.
Sunday Finance: How is the division of assets in a divorce settlement determined in Jamaica?
Andrea Moore: In the Courts, the division of assets in accordance with the Property (Rights of Spouses) Act is based on the monetary and non-monetary contribution of the respective parties to the asset(s) that the party is entitled to benefit thereof. However in relation to the division of real property specifically, each party is entitled to one-half share of the matrimonial home, however the Court may vary the equal share on a case by case basis dependent on whether the home was inherited, the home was owned by one party at the time of marriage or if the marriage is of short duration.
Either party may apply to the Court for a share in the other property or properties owned by the other party if he or she considers himself so entitled. The Court is guided by the monetary and non-monetary contributions of the applicant.
Sunday Finance: Specifically, it is said that family business is a complicated asset in divorce settlements. What are the factors that determine how much each spouse is entitled to?
Moore: The Property (Rights of Spouses) Act stipulates that the value of the property including family business that would be divided between the spouses shall be ascertained by the deduction from the value of property owned by each spouse any secured or unsecured debt (other than personal debts or debts secured wholly by the property) owed by one spouse and the unsecured personal debts owed by one spouse to the extent that such debts exceed the value of any property of that spouse.
The Court considers a number of factors in order to determinate the share to be granted to a spouse which may include monetary or non-monetary contribution, directly or indirectly made by or on behalf of a spouse to the acquisition, preservation or improvement of any property whether or not the property ceases to be owned by the spouse or either of them.
In addition, the Court considers that no matrimonial home is owned, the relevant children of the marriage, the duration of the marriage, whether is a pre-nuptial agreement exists and any other fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account.
Sunday Finance: It is generally perceived that the courts are biased towards the female party in making judgments on divorce settlements. What is your opinion on this? Looking back on cases in the past, what has been the general trend?
Moore: In contentious divorce settlements, the core issue often concerns the custody of the child(ren). The Court is obliged to consider the best interest of the child(ren) and it is my view that unless the mother is proven to be unfit to provide a stable home environment and a positive role model for the child(ren) then it is unlikely that the Court will award custody to the father. Thus, in uncontested divorce matters, the parties have often times decided to part company and move on with their respective lives. However in the absence of empirical data, it is my view that in contentious divorce settlements involving the custody of child(ren), the mother is oftentimes awarded custody of the child(ren).
Sunday Finance: What recourse does one partner have if the other refuses to grant a divorce on the basis that they do not wish to share the assets?
Moore: In the instance where one partner is acutely aware that the other partner may make the divorce contentious if the division of the assets is being considered then the Petitioner, the party seeking the divorce, is advised to proceed to dissolve the marriage first. Thereafter, the party may make an application to the Court for the division of property, which includes real and personal property.
Sunday Finance: How are child support payments determined?
Moore: In the determination of child support payments, the Court requires the evidence of the income of father who is under a duty to maintain all his children and any child which his wife may have living at the time of the marriage with him. The wife would in addition adduce evidence to support the expenditure to maintain the household of his child(ren) namely, utilities, meals, school fees and medical expenses, lunch money, extra-curricular activities and some recreation activities which the child(ren) have grown accustomed to in their lives. Notably, the husband is no longer obligated to maintain his wife if she is able to do so for herself.
Sunday Finance: How common is the signing of pre-nuptial agreements in Jamaica?
Moore: The drafting of pre-nuptial agreements in Jamaica in general has been off to a sluggish start, however in perhaps the last two years, there has been an upward trend. It is mainly used by mature persons, persons previously married and business persons.
Sunday Finance: Supposing that Tiger Woods and his wife were Jamaicans in Jamaica, considering that he has admitted to committing adultery and presuming there was no pre-nuptial agreement, what sort of divorce settlement do you think his wife would have gotten in the Jamaican court?
Moore: The dissolution of marriage in Jamaica is based on the parties being separated for at least one year prior to the commencement of the proceedings. In addition, the sole ground is that the marriage has irretrievably broken down and there is no reasonable likelihood of cohabitation between the parties being resumed. In addition, the parties should have sought Counselling as an attempt at reconciliation. The grounds for divorce based on fault such as adultery, cruelty and desertion has been revoked many years ago.
Thus, in the instance of Tiger Woods and his wife divorce settlement being adjudicated in the Jamaican Courts the matter of the division of the assets and perhaps the custody of the children may be the contentious issues for the Court to determine. The matrimonial home would be divided equally unless the Court is persuaded to vary the equal share in favour of either party. In relation to Tiger Woods' many other assets, the non-monetary contribution of his wife namely her management of the household and the care devoted to the children would be factors which would guide the Court on the award of portions of Tiger Woods' assets to his wife. The Court also considers the giving of assistance or support by one spouse to the other, whether or not of a material kind, which includes the giving of assistance or support which aids the other spouse in the carrying on of that spouse's occupation or business. In addition, the Court is guided to consider the facts or circumstances that in the Court's opinion, the justice of the case requires to be taken in to account. Thus Tiger Woods' wife, Elin may have been in for a fortune if she was a Jamaican national and filed the Petition in the Jamaican Courts.