Legal Eagle : Determining share and value after a split

October 30, 2017
Couple in trouble *** Local Caption *** Couple in trouble

On April 1, 2006, when the Property (Rights of Spouses) Act [PROSA] was promulgated, it was hailed as one of the most progressive pieces of legislation in Jamaica in many years.

This was primarily so because, for the first time, a spouse's contribution as a homemaker was recognised in law, to the extent that it gives that spouse a share in the family home.

PROSA also recognised common-law union in the same way as marriage, save that in a common-law union, the parties must be a single man and a single woman who cohabit as husband and wife for a period of not less than five years.

Although PROSA provides relative good guidance as to how to determine share and value in most cases that come before the courts in Jamaica, the issues to be resolved touch and concern the share and value of the family home.

 

Determination of share

 

Under Section 6 of PROSA, each spouse is entitled to a one-half share of the family home at the grant of the decree absolute, which dissolves the marriage, grant of a decree of nullity, termination of cohabitation [common law union] or separation [marriage].

This is called the equal share rule. The rule will prevail unless the parties in contemplation of marriage or cohabitation, for the purpose of contracting out of the provision of PROSA, make an agreement concerning the ownership and division of their properties, to include furniture.

Section 12 of PROSA deals with the determination of value, share and the valuation of the family home. In particular, Section 12(2) provides that a spouse's share in property shall be determined as at the date the spouses cease to live together as man and wife.

The effect of this section is that each party is not entitled to a one-half share of the family home until the end of the marriage, cohabitation or separation.

However, Section 7 of PROSA gives the court the power to vary the equal share rule upon the application of an interested party and where the court finds that it would be unjust or unreasonable for the equal share rule to prevail.

 

Determination of value

 

To determine the value of the share, the Section 12 (1) of PROSA provides that the value shall be the value at the date of the order, unless the court otherwise directs.

The effect of this provision is that the court has discretion to use the date when the order is made, the date cohabitation ended, the date of separation or termination or any other date, depending on the facts of the case before the court.

To assist with the determination of the value, the parties are required to agree a valuator, failing which one would be appointed by the court.

In addition, each party can also rely on Section 17(2) of PROSA, which provides that the value shall be ascertained by deducting from the value of each spouse's share, any secured or unsecured debt owed by one spouse and/or the unsecured personal debt owed by one spouse, among other things.

 

Love and section 10 of PROSA

 

For those who contemplate marriage, they might wish to understand that marriage involves the unseen and intangible 'thing' called love.

About love, Kahlil Gibran said "When love beckons to you, follow him ... though the sword hidden, among his pinions may wound you."

If you are wounded by the 'sword hidden', it might lead to separation and then the tangibles, such as properties, cars, money and furniture, will need some sorting out, which is generally done by a judge in court.

Don't be blinded by love. Avoid court action and expenses by using Section 10 of PROSA and make a premarital agreement. It works.

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