It seems like it was only a few months ago that the highly anticipated enactment of The Property (Rights of Spouses) Act was the hot topic of debate. It has been almost three years since its introduction, and we are seeing an expanding body of jurisprudence which will help us to better interpret and apply the provisions of the act.

One such case, B v B, was decided on July 31, 2008. The parties had been involved in a relationship for more than 20 years when it ended in divorce on June 3, 2005.

On July 11, 2006, the wife applied to the court for a declaration that she was entitled to a 50 per cent interest in all assets acquired during the common union and later the marriage on the ground that she had made direct and indirect contribution towards their acquisition.

Many assets

There were many assets, all of which were bought only in the husband's name or in the joint names of the husband and the children. No assets were registered in the wife's name at all, not even the car she drove.

Three important issues were considered in that judgment:

1 Was there a family home? It is the act, which came into effect on April 1, 2006, which introduced the concept of the 'family home' and created the presumption that each spouse is entitled to an equal interest in the family home ('the 50:50 rule'). The judge was of the view that the fact that the marriage came to an end on June 3, 2005 - nearly 10 months before the act came into effect on April 1, 2006 - meant that the provisions of the act which refer to the family home could not apply, because the act does not have a retroactive provision.

Each party's interest in the assets, including the house which the parties had shared as man and wife, had to be determined with reference to factors, such as the duration of the marriage and the contribution made by each party towards the acquisition of the asset.

2 When parties acquire property between the date of separation and the date of the filing of an application under the act, what property will the court consider to be relevant for the purposes of determining each party's interest in property? The judge interpreted section 12 (2) of the act to mean that it is the property which the parties had acquired up to the date of their separation which may be the subject of the application under the act. She was not prepared to consider the parties' interest in property acquired after separation.

Each party's interest

3 What factors should the court take into account when determining each party's interest in property? In this case, the court looked at direct and indirect contribution, financial or otherwise, the duration of the marriage and other circumstances. The fact that the union was of a long duration and that the wife took care of the children, paid household expenses and worked in the business all weighed heavily in the her favour, even though there had been no direct financial contribution towards acquisition of the properties. The indirect contribution made by the wife was said to have assisted the husband by allowing him to devote his attention to his business interests.

In the end, the wife was awarded a 50 per cent interest in two of the properties, rental income, the motor car which she drove and 20 per cent of her husband's interest in one other property and the business.

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