When a marriage (including a common law marriage) breaks down irretrievably or is annulled, applications for division of property can be expected to follow. Ordinarily, these applications must be made within 12 months of the divorce, cessation of cohabitation, or annulment (as the case may be). The court having jurisdiction depends on the value of the property, but in most cases the application will be made to a judge of the Supreme Court in chambers. The family home, being the largest asset for most couples, tends to be the prime focus of applications for division of property. While popular culture may lead a spouse or former spouse to assume her/his half interest in the family home is guaranteed, even if the only name on the title is that of the other spouse, the nuances in the law on the family home make that assumption unsafe.

The fact that a family lives in a house does not mean that house is the family home. To satisfy the definition of ‘family home’ under the Property (Rights of Spouses) Act, the dwelling house must:

1. be wholly owned by either or both spouses,

2. be used habitually or from time to time by the spouses as the only or principal family residence,

3. be used wholly or mainly for the purposes of the household, and

4. not be a gift to one spouse by a donor who intended that spouse alone to benefit.

In addition to the dwelling house, the term ‘family home’ also includes “any land, buildings, or improvements appurtenant to such dwelling house”. Disputes may arise, therefore, as to what land is appurtenant. To resolve those disputes, the court will have to make a value judgment based on various factors, including: whether there is any physical division of the land, whether the parts additional to the dwelling house were acquired at the same time and for the same purpose, whether the land is physically contiguous or in close proximity, and whether the properties share a common history.

Although each case will turn on its own facts, the legal requirements readily exclude several properties from being the family home. Here are four examples of houses that cannot qualify:

i) A house occupied by a married couple but owned by the husband’s parents,

ii) A house occupied by a married couple but owned by the husband and his sister,

iii) A house occupied by a married couple that was gifted to the wife by her living parents who intended only for their daughter to benefit.

iv) A vacation home owned by either or both spouses in addition to a main residence.

Where a property satisfies the definition of family home, the general rule is that each spouse is entitled to one-half share (“the equal-share rule”). However, an interested party (ie, a spouse, relevant child of the marriage, or any other person with sufficient interest) may apply to the court to vary the equal-share rule. The grounds for varying the equal share rule are that (a) the family home was inherited by one spouse, (b) the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation, and/or (c) the marriage is of short duration. If, on the interested party’s application, the court opines that it would be unreasonable or unjust to apply the equal-share rule, the court may make such order as it thinks reasonable.

Regardless of whether the equal-share rule is applied or varied, a spouse’s interest in the family home is generally determined as at the date on which the spouses ceased to live together as man and wife or to cohabit. If the spouses have not so ceased, then the interest is to be determined as at the date of the application to the court.

The court has wide powers to give effect to its apportionment of matrimonial property. For example, the court may order the property to be sold and for the proceeds of sale to be divided among the spouses in specified amounts. The court may also give one spouse the first option to purchase the other spouse’s interest, or order one spouse to make a payment to the other (whether by lump sum or instalments). There are also numerous other possibilities.

By enacting the Property (Rights of Spouses) Act in 2006,Parliament directed the courts of Jamaica to adopt an entirely new and different approach to the resolution of proprietary disputes between spouses. With regard to the family home, the apportionment of spousal interests is primarily based on whether the disputed property can satisfy the legal requirements of the family home, the date of separation or termination of cohabitation, and whether it is just and reasonable to apply the equal-share rule. Only when a property is found to be the family home and there is no basis to vary the equal-share rule will each spouse automatically be entitled to a half interest.

Jacob Phillips is an Associate in the Litigation Department at Myers, Fletcher and Gordon. He may be contacted at jacob.phillips@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.