Legal Scoop | 50/50 folly - Ex-spouse not always entitled to an equal share of the family house

The Property (Rights of Spouses) Act provides that spouses to a marriage are entitled to a 50/50 share in the family/matrimonial home.

For the average Jamaican, married couple, the matrimonial/ family home is purchased jointly and is the place the where the couple reside for many years, and where their kids are reared and, therefore, the presumption of a 50/50 share seems sensible and just.

What happens, though, where the property in question was purchased exclusively by one of the spouses before the marriage and the marriage itself was of a short duration? In such a situation, should the party who never contributed to the acquisition of the house in question acquire a 50 per cent share of same, simply by virtue of a short marriage?

The recent case of Allicent Kelly Lasisi v Jimoh Lasisi, which was heard by Justice Laing in the Supreme Court between October 2015 and May 2016 (and the written judgment admirably - already handed down) provides some guidance.

In this case, Mrs Lasisi claimed a 50 per cent share in the matrimonial home located in the upscale Manor Park community, which had been purchased many years before marriage by Mr Lasisi, in his name only.

 

Duration of the marriage

 

In the Lasisi case, the parties got married on January 1, 2013 and cohabited at the property until September 2013, when Mr Lasisi told Mrs Lasisi that it was not going to work out between them and moved into a separate room, sexual relations ceased between them and they hardly communicated thereafter.

This state of affairs continued until Mrs Lasisi moved out of the property altogether in December 2013. In determining whether September 2013 or December 2013 was the appropriate marker for the end of the marriage, Justice Laing was guided by Section 12(2) of the act, which provides that "A spouse's share in property shall ... be determined as at the date on which the spouses ceased to live together as man and wife or to cohabit, or if they have not so ceased, at the date of the application to the court." [emphasis added by writer].

Since Mr and Mrs Lasisi both ceased to live together (December 2013) and to cohabit (September 2013), the earlier in time marker was applicable. The court, therefore, concluded that September 2013 was when the marriage ended.

 

Where application of the 50/50 share rule is unjust

 

It should be noted that Section 6 of the Property (Rights of Spouses) Act provides that each spouse is entitled to a 50/50 share in the family home. However, there are exemptions. Section 7, for instance, provides that the court may make such orders as it deems fit where it "would be unreasonable or unjust for each spouse to be entitled to one-half of the family home".

Section 7 also sets out the factors that should guide the court in arriving at a determination that it was unreasonable or unjust for each spouse to be entitled to one-half, namely:

(a) That the family home was inherited by one spouse;

(b) That the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation;

(c) That the marriage is of short duration.

Two of the above-mentioned factors being present in the Lasisis case, that is, Mr Lasisi owned the property in question before the marriage and that the actual marriage was of a short duration, Justice Laing formed the view that in all the circumstances of the case, "it would be have been unreasonable or unjust for each spouse to be entitled to one-half the family home".

Having formed the view that it would be unjust for the parties to own a 50/50 share of the family home, Justice Laing then had to go on to consider whether an alternative reasonable order could be made in respect of the family home.

To this end, the judge looked at the following factors: the level of contribution by each party to the matrimonial home, their respective ages, behaviour and other property holdings. I have extracted, and set out below for the benefit of readers, because he says it so well, Justice Laing's conclusions on the various factors cited before:

 

Analysis and conclusion

 

"The claimant has her own property at Merrivale. She is approximately 47 years of age and in a good job. She has retained her furniture and other items that she took to the property.

"The parties did not have a joint account nor did the parties have any children together.

"... Based on the circumstances of this case, and in particular the fact that the property was acquired before the marriage, as well as the fact that the marriage was one of short duration, I find that it would be unreasonable and unjust not to vary the equal-share rule prescribed by Section 6. I find that a fair award would be that the claimant is entitled to 10 per cent of the defendant's legal and beneficial interest in the property, and that it would be unreasonable and unjust for the claimant to be awarded a greater or lesser interest ..."

So there you have it, readers, the 50/50 share can and will be rebutted where the court deems it just to do so. However, my advice to my little brother recently on this similar: Do not live in your house if you are worried. Rent it out. Live in either a rental or something jointly purchased by the hard-earned cash of you both.

Remember, the family home has to be the only or principal family residence. Therefore, if you and your wife, after marriage, never live in the house purchased by you only before marriage, then it cannot qualify as the principal family residence during the union!

-  Shena Stubbs is an attorney-at-law and legal commentator

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Email: shena.stubbs@gleanerjm.com

Twitter:@shenastubbs