During a divorce or separation, the question of matrimonial property division often arises as couples tend to argue about who spent more money when building the house or paying the mortgage and would therefore be entitled to be a bigger stake of the house. Matrimonial Property is defined in the Property (Rights of Spouses) Act (PROSA) as “any real or personal property, any estate or interest in real or personal property… or any other right or interest whether in possession or not to which the spouses or either of them is entitled.” From this definition, it is clear that property is not defined to mean only the family home. The only thing the law has done in relation to the family home, and not in relation to other property, is the presumption that that there be the automatic application of equal division or the “50-50 rule” unless good grounds exist to warrant a deviation from it (section 6 of the Act).
The division of property and assets can be a tedious and sometimes heart-breaking experience for some couples. Courts in Jamaica now have wide powers to redistribute property following divorce or separation, Courts do not need to embark on in-depth investigation into who said what and paid what at the time the property was purchased in order to determine the extent of each party’s beneficial interest.
Here are some ways to handle the division of matrimonial property:
- Keep and bring in every financial statement that you have about the property being contested so that the court may ascertain how best to divide the properties involved.
- It will be necessary to have the property valued in order to allow for its disposition, either by a sale of the interest of one party to the other or by a sale of the entire property on the open market. The cost of the valuation is usually borne equally.
- If there is a family business, then shares can be bought from the other. It should be noted that in the case of Eutetra Bromfield v Vincent Bromfield  UKPC 19, the Privy Council held that companies are legal entities separate from their shareholders. Company property is company property, and not that of its shareholders, subject to very limited exceptions.
- If there were relevant children of the marriage, then properties could be transferred to them in their name.
Dividing matrimonial property is a way of being fair to your spouse. Ultimately, both parties are able to move on, but it secures peace of mind knowing that the other has been given his fair share while married.
Abi-Gaye White-Thomas B.A., LL.B (Hons)