THE Privy Council, overturning a ruling of the Jamaican appeal court, has ruled that Roy Green was entitled to a one-third share on a slew of real estate and businesses held in the name of his wife Vivia, whose accumulation started in the early 1970s when the couple began their relationship but were both still legally married to other persons.

The May 20 decision by the law lords essentially reinstated a 1997 ruling by Justice Chester Orr, who had held that notwithstanding the fact that Vivia Green’s name was on the titles of most of the properties and that she had managed the businesses, on the evidence and on the balance of probabilities her husband had contributed to the acquisition and that they had acted with common intention.

The decision is likely to be seen as an important development in favour of gender equality, in much the same manner as other rulings in recent years in which women were held to be entitled to a share in property held by men, even though they were not legally married.

The saga of the Greens began in 1972 when they first met and were still each married to someone else.

Explained the Privy Council in the ruling delivered by Lord Hope of Earlsferry: “They formed a relationship and in 1973 decided to live together as man and wife. It was not until some years later that they were free to marry each other.

“The respondent (Vivia Green) was divorced from her first husband in 1980, but it was not until 1983 that the appellant (Roy Green) was divorced from his first wife.”

The Greens were married in 1984, but in between the start of their relationship and their formal marriage they had two daughters, born in 1973 and 1975. Not long after their marriage, the relationship began to deteriorate and in 1987 the husband left the matrimonial home. In 1990, Vivia Green left Jamaica for the United States.

In 1992, Roy Green went to court in Jamaica seeking a declaration that he was entitled to one-half of the equity in the property that had been acquired by the couple during the period of their relationship.

From 1973 to the time of their separation, the Greens had acquired three business enterprises and seven business and resident properties. Of the seven properties, five were registered in the name of the wife. One, at Governor’s Pen, St Mary, was in both their names and in the case of one, at Marine Park, St Catherine, no title was produced at the hearings, but Roy Green said it was registered in his name.

The acquisitions by the Greens began in 1973 when they purchased a small supermarket at Carpenters and East roads, St Andrew. Then, in 1975, they bought two houses, the three-bedroom property at Marine Park and a two-bedroom house at Donmair Drive, St Andrew, which was later expanded.

In 1977, the business at Carpenters and East roads was sold and the proceeds were used to buy another supermarket at Pembroke Hall, St Andrew. That acquisition was in the name of Vivia Green.

In 1980, they bought a large home at 27 Wiltshire Avenue, Barbican, which, too, was registered in the name of the wife. The family lived at that property. That same year they bought the land at Governor’s Pen, with both names going on the title.

In 1981, they bought a supermarket in Papine, St Andrew, which was looted after it was destroyed by Hurricane Gilbert in 1988. That business was in the name of the wife, as was a supermarket that was purchased at Stony Hill in 1984.

In 1984, too, two apartments were bought at Oakland Court on Constant Spring Road in the name of the wife.

During all this, Roy Green was employed full-time in the construction sector as a supervisor. Vivia Green handled the finances and was responsible for the day-to-day operation of their various business enterprises.

Noted Lord Hope in the Privy Council judgment: “As so often happens in cases of this kind, they got on with their busy lives without much thought for the future. No agreement was made as to how beneficial interest in the various properties were to be divided between them. This is the background against which the judge (Justice Orr) was asked to decide what part the appellant (Roy Green) played in the acquisition of the assets in which he was claiming a share of the equity.”

Roy Green’s argument was that at the start, neither he nor his future wife had much by way of money, but he contributed to the accumulation of assets by the sale of his motor car. While Vivia Green managed the business, he claimed, he had enough time off from work during the day to search for, collect and deliver goods to the supermarket. He also worked at the supermarket at the end of his day job after 4:00 pm until closing time at 7:30 pm.

Vivia Green’s case was that all the business enterprises and properties were acquired from her own savings and her own efforts, except the house at Marine Park, for which her future husband paid the deposit and the instalments due on the mortgage. But even in that case, she claimed, when he was unable to maintain the mortgage payments she gave him a substantial sum to clear the arrears.

Mrs Green also said that she was assisted in the running of the businesses by her brothers and her mother, and that she had paid for the additions which her husband made to the house at Wilthsire Gardens and for the construction of buildings at Governor’s Pen — all from her own resources, including the assets generated as a result of her own efforts in the various businesses.

Justice Orr, in the case at first instance, held that the Greens had beneficial equal shares in the Marine Park and Governor’s Pen properties. He found that while Roy Green made no initial contribution in the acquisition of most of the other properties, and had probably over-stated his contribution to their purchases, he was, in fact, a partner and had left the handling of the finances to Vivia Green.

“…This was not due to an acceptance of her role as the sole owner but because of her capacity in this regard,” Justice Orr ruled. “I infer that there was a common intention between the parties from the outset for the acquisition of the business at Carpenters Road and East Road that both should share in the beneficial interest and in all subsequent acquisitions.”

Justice Orr had also accepted Roy Green’s explanation that he had allowed Vivia’s name only to go on so many of the properties because of her concern that because they were not married she might be deprived by his family should anything happen to him.

Having weighed all the circumstances and the evidence at the hearings, Justice Orr ruled that Roy Green was entitled to a third of the value of the properties, except purchases that Vivia Green had made in the United States.

Roy Green was apparently satisfied with this ruling, but Vivia Green appealed to the Jamaica Court of Appeal, where justices Downer, Harrison and Panton overturned Justice Orr’s ruling.

In the Appeal Court ruling, delivered by Justice Harrison, it was held that on the evidence available it was not open to Justice Orr to find that Roy Green’s contribution was sufficient to indicate that there was common intention on the party of the couple, on which Roy Green relied to his detriment.

Roy Green’s contribution to the initial business, the appeal court held, was not more than intermittent and he had accepted that the business was the source of the finance for the acquisition of various properties. Neither did Roy Green have specific knowledge of the details of the purchases or financing of the various properties “as he took no part in these transactions”.

The Appeal Court did agree that Roy Green had a beneficial interest in the Governor’s Pen property — at one-third value — but not in the remaining properties or sums held in bank accounts.

Roy Green decided to take the case to the Privy Council, Jamaica’s court of last resort.

But the Privy Council judges, who place much store on the fact that Justice Orr had had the opportunity to hear the evidence and assess the witnesses, said that they were “not persuaded that the judge was not entitled to draw the inference that the appellant was… a partner in the acquisition of the businesses and there was a common intention from the outset that the beneficial interest in the properties was to be shared”.

Added the law lords: “The fact that it was left to the respondent to manage all the finances and to arrange for the acquisition of the various properties might have been taken to point in the opposite direction. But the judge (Orr) accepted the explanations which the appellant gave for this, and this too was a matter for him as he was in a position to assess the evidence which both parties gave from the witness box.”

The Privy Council judges also said that Justice Orr’s decision to apportion the assets the way he did — two-thirds in favour of Vivia Green instead of the one-half each sought by Roy Green — “tends to show, if further demonstration of this fact is needed, that he gave careful consideration to the difficult problem of doing justice between the parties in the unsatisfactory position in which they found themselves following the breakdown of their relationship”.