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Your entitlement to property

Monday, July 23, 2012

UNDER the Property (Rights of Spouses) Act 2004 which came into effect on April 1, 2006, you are entitled to a half of the property owned by your spouse or your common-law husband or wife of over five years once the relationship has ended.

The Act stipulates that property should be shared equally between spouses following a divorce, the granting of a decree to nullify a marriage, the termination of cohabitation, or following a separation with no likelihood of reconciliation. Property under the Act refers to a wide range of assets including real estate, money, any negotiable instrument or any real or personal property.

Under the Act, there is a presumption that each spouse is entitled to a 50 per cent share of the family home, even if it is registered in one person's name. However, as in all presumptions in law, it can be rebutted by evidence in court to vary the 'equal share rule'. The Act also recognises the enforceability of prenuptial, postnuptial, as well as settlement agreements.

Prenuptial agreements made by persons contemplating marriage or cohabitation can and will be enforced once the agreement is written and signed by both parties and each party had obtained independent legal advice before signing. The legal advisor must, however, certify that the implications of the agreement have been explained to the parties. Spouses are also able to agree upon a postnuptial or settlement agreement which would allow them to amicably divide their property as they see fit.

Proceedings relating to a spouse's right to property is primarily dealt with in the family court or by a resident magistrate in the parish where the property is located, however, in some cases, it is also heard before a judge of the Supreme Court. The judge or resident magistrate, based on the applications of a spouse, would hear such an application in chambers. If the judge believes it's unreasonable for both parties to be entitled to a half of the family property each, then the judge will take this into consideration while taking things into account, such as the fact that the home was inherited by one spouse, that it was a gift to one spouse or that the family home was already owned by one spouse prior to marriage or cohabitation.

According to Subsection 10 of the Act, if the marriage comes to an end because of the death of one spouse, the family home will be turned over to the surviving spouse even if it was not held by both spouses as joint tenants. The same rule applies if you were just cohabiting with each other for more than five years.

Under the law, a spouse would also not be able to dispose of property without the court's approval or the written consent of the other spouse and an individual who does so would be committing an offence and if convicted before a resident magistrate, could be asked to pay a fine not exceeding $1 million or imprisoned for a term not exceeding 12 months, or both.

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