Mcgregor

Under the Property (Rights of Spouses) Act, one spouse may be entitled to a 50 per cent share in property owned by one or both spouses on the occurrence of certain specified events.

The definition of the words 'family home', as used in the context of the act, was the subject of a recent decision of the Supreme Court in the case of Stewart v Stewart, in which a wife applied for a share in a house which was owned by her husband.

Under the act, the family home is defined in the following terms:

a dwelling house it is wholly owned by either or both spouses it is habitually or from time to time occupied by the spouses the permanent or usual abode of the spouses the principal or only family residence.

In the Stewart case, the learned judge was careful to say that the use of the property in the manner contemplated by the statute was crucial. Therefore, the facts in each case had to be carefully considered to determine whether the property was really the family home. In particular, the judge was of the view that the court should examine things such as:

The family's sleeping and eating arrangements the location of clothes and other personal items where the children eat, sleep and get dressed for school where correspondence was sent.

The facts of the Stewart case are that the couple moved into the relevant house in November 1998, but the wife relocated to an apartment in March 1999 because her daughter had an allergic reaction to the carpet in the house. Thereafter, the daughter left the apartment and attended school each morning; and they both remained there until 2006.

The daughter never slept at the house after March 1999 and there was no evidence that either the wife or the daughter kept any clothes or personal items there. In fact, the wife testified that she cooked for her husband at the apartment and that he even slept there. However, the wife supervised the helper who worked at the house.

Given the fact that the house was wholly owned by the husband and the wife never contributed to its acquisition, it was open to the court to rule that it was the family home if the facts supported such a conclusion. However, because the actual use to which the house was put was what determined the question, the judge found that the apartment was the family's primary residence and base of operations until 2006. Therefore, the house was not the family home and the wife's application failed.

It is important to understand these finer points in the event that a time should come when the provisions of the act need to be relied upon. In that regard, it must also be noted that a dwelling house which is a gift to one spouse by a donor that is intended to benefit that spouse alone, will not qualify as a 'family home'.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.