Laws of Eve | What property is the family home?

With the purchase of a home being the most significant investment most persons will make in their lifetimes, it stands to reason that issues surrounding the ownership of that property are likely to occupy the minds and energies of most couples who separate or get divorced.

The law regarding ownership of the family home is now quite settled, with the Property (Rights of Spouses) Act making it clear that each spouse is entitled to one half share of the family home, unless there is some basis on which those shares are to be varied. However, the questions surrounding whether a couple has a family home at all or which one of the multiple properties that they own is the family home tend to occupy the courts.

Although space will not allow for a detailed analysis of these issues, there is guidance from the act and some decided cases:

'Family home' is defined in Section 2 of the act as "... the dwelling house that is wholly owned by either or both of the spouses and used habitually or from time to time by the spouses as the only or principal family residence together with any land, buildings or improvements appurtenant to such dwelling house and used wholly or mainly for the purposes of the household, but shall not include such a dwelling house which is a gift to one spouse by a donor who intended that spouse alone to benefit".

In Peaches Stewart v Rupert Stewart Claim No HCV 0327/2007, delivered November 6, 2007, the learned judge stated that, "... the adjectives only and principal are ordinary English words and there is nothing in the entire statute that suggests that they have some meaning other than the ones commonly attributed to them. Only means sole or one. Principal means main, most important or foremost. These adjectives modify, or in this case, restrict the width of the expression family residence. Indeed, even the noun residence is qualified by the noun family, which is functioning as an adjective in the expression family residence. Thus it is not any kind of residence but the property must be the family residence. The noun residence means one's permanent or usual abode. Thus family residence means the family's permanent or usual abode."

In Froome v Froome [2018] JMSC Civ 110, the learned judge opined that, "The 'family home' must be the dwelling house that is the 'principal residence' used by the spouses habitually or from time to time, mainly for the purposes of the household. That there can be only one dwelling house regarded as such is evident from the definition, and the fact that the definition is stated in the present tense (using 'is'), to me suggests that the premises ought to be the current dwelling house that is the main place of residence at the time of separation. The intention of the parties is important."

It is expected that there will be other cases that address this issue in time. For now, all couples should bear in mind that when they change their residence during the course of a marriage or cohabitation, it could ultimately affect the view a court will take of which property is the family home. For that reason, the intention of the parties at the time of that relocation, whether the move is temporary or permanent and whether they ever return to reside in the first property prior to separation will all be important considerations when assessing what property is the family home.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.