THE Senate yesterday passed the Family Property (Rights of Spouses) Act, which will give the same property rights to common law unions as granted to married couples.

The bill is intended to replace the existing rules and presumptions of common law and equity and revolves around:

. the recognition of cohabitants or common-law spouses who have lived together for at least five years;

. special treatment of the family home to provide for an equal division of the home subject to the power of the court to order a variation where its application would be unreasonable; and where the marriage comes to an end due to the death of one of the spouses, the entire interest in the family home will pass to the surviving spouse;

. the stipulation of specific conditions to be met where spouses wish to contract out of the statutory regime; and

. the provision of guidelines to assist the court in arriving at an appropriate decision by conferring wide discretion to divide property other than the family home as it sees fit.

The legislation also provides for ante and post nuptial agreements; declaration of property rights; determination of value and share of property; the manner in which property is to be divided; property and creditors; cases where the sale of property is made to defeat the claim of a spouse or other party; and proceedings of and orders that the court may make in relation to property.

As a consequence, it also makes amendments to the Judicature (Family Court) Act; the Married Women’s Property Act and the Matrimonial Causes Act.

“Gone are the days when a man could say to his wife ‘come outta mi house,” government senator Keste Miller said.

“When you are in love everything is fine…but sometimes love finds another way,” said Miller, who explained that the legislation was modelled partially on approaches taken in Australian and New Zealand legislatures.

Opposition member, Dorothy Lightbourne, in supporting the bill, harkened back to the “old days” when “men controlled the money and the woman’s contribution was not recognised”.

She also pointed out aspects of the bill, such as the references to ante and post nuptial agreements, as perhaps being more applicable to “more advanced and sophisticated societies”, although noting that some sections of the Jamaican society were now entering into such agreements.

According to the bill, the basis of the legislation is aimed at correcting the lack of provisions for equitable division of property between spouses upon the breakdown of marriage as the basic principle governing property rights is “you own what you buy”.

“This has placed spouses who have never worked outside the home at an obvious disadvantage where there is a dispute as to the ownership of property, where proof of purchase or contribution to the purchase of the property in question is required.”

“There are also practical difficulties regarding proof of contribution since records of expenditure are not usually kept and contribution is often indirect,” according to the bill.

In recognising the binding nature of common-law unions, the legislation states that in seeking to enact these new provisions, the government was aware of the social reality of men and women living together. “They build families together, they work together and they accumulate possessions together.”

Added the bill:, “When the union breaks down, the parties experience the same kinds of financial dislocation as if they were married. In our society, legal solutions for the problems of family breakdown must address not only married couples, but also common-law spouses, if they are to be effective.”

But while most members of both sides of the Senate were in agreement with the bill, Opposition senator, Anthony Johnson, sounded a somewhat cautionary note: “I don’t want anyone to think that this legislation is encouraging people to split up by saying my time now,” he said. The real issue, he said, was that people in unions should stick together and “not say bad things about each other”.

“In some countries you stay with one partner for life,” said Johnson.