They say marriage is a partnership, but does that mean a 50/50 split even when one partner did nothing? The Property (Rights of Spouses) Act, 2004 (PROSA) governs how property is divided between spouses. Spouse under the Act includes not just husband and wife, but also a “single woman who has cohabited with a single man for a period of not less than five years” or vice versa. This expansion gives cohabiting partners the same rights as married couples to claim an interest in the “family home” which is defined as the dwelling house owned by either or both spouses and habitually used by them as the only or principal family residence.

The Act also introduces what is called the ‘equal share rule’, which is a presumption that each spouse is entitled to one-half share of the family home:

i.on the grant of a decree of a dissolution of marriage or the termination of cohabitation;

ii.on the grant of a decree of nullity of marriage; or

iii.where a husband and wife have separated and there is no likelihood of reconciliation.

Thus, if either of these events occur, each spouse will have an automatic right to 50 per cent of the family home.

It is axiomatic that the equal share rule was derived from the well-established view that marriage is a partnership of equals, with parties working together for the benefit of the union. Thus, when they separate, fairness requires that each partner is entitled to an equal share of the fruits of the partnership (unless there is good reason for a different outcome).

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 pursuant to section 7 of the Act. Importantly, section 7 is drafted in deliberately broad terms. It empowers the court to make “such order as it thinks reasonable taking into consideration such factors as the court thinks relevant including the following:”

(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.

The critical point is that the statute itself does not restrict the Court’s discretion to these three factors. Instead, it expressly empowers the Court to consider “such factors as it thinks relevant,” with (a)-(c) given as examples.

However, in a landmark 2013 decision, the Court of Appeal narrowly construed the Act. It observed that “each of these three factors provide a gateway…it is at that stage, but not otherwise, that matters such as the parties’ contributions become relevant.” In other words, the court observed that there can be no varying of the equal share rule if none of the factors at (a)-(c) above exist.

That view, as will be later shown, was problematic, overly restrictive, and inconsistent with the text and the spirit of PROSA itself. By creating “gateways” where Parliament had provided a wide discretion, the Court in effect narrowed what the Act had deliberately kept open.

In a recent 2024 decision, the Court of Appeal departed from the reasoning that the presence of one of the three factors was required for the court to vary the equal share rule. The court affirmed that the law bestows a discretion on the court to consider not only the factors listed, but any other and all factors that would be relevant in order for the court to arrive at a fair and just result.

Why fairness as the guiding principle is the preferred approach

One cannot help but welcome the Court of Appeal’s most recent approach. It is not difficult to see that justice in certain situations demands that the rigid application of the equal share rule be relaxed.

For example, where one spouse has made negligible or no contribution, financially or otherwise, it would be inequitable to confer half of the family home as a windfall. Further, the concept of fairness, illusive as it is, cannot be predetermined by rigid categories. PROSA was never meant to institutionalise injustice in the name of equality. Imagine a scenario where one spouse leaves the home and children soon after the home is purchased, while the other maintains it and raises the family for decades. It would be unjust for the absentee spouse to still claim half.

Some may argue that this decision blurs the line between “other property” and the “family home,” but that view overlooks that the equal share rule was never meant to be a straitjacket. The court’s discretion does not erase the distinction; it simply ensures the family home is not insulated from the demands of justice.

Conclusion

The 2024 decision of the Court of Appeal properly restores justice as the guiding principle of property disputes under PROSA. While equality remains the starting point, fairness must be the destination. Families are complex, and the law must be flexible enough to respond to the realities of each case.

Alexis Robinson (partner) and Joshua Page (associate) are Attorneys-at-Law in the Litigation Department. They may be contacted at alexis.robinson@mfg.com.jm and joshua.page@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

Joshua Page.