Mcgregor

Many complicated questions have been asked in response to last week's article, and only parts of them can be answered in any one article.

The question

One reader has been separated from his wife for two years. He is involved with someone else and wants to get married. He also plans to buy a new house with his wife-to-be. However, he wants to know whether he should wait until the divorce proceedings come to an end before he embarks on this new project.

I have interpreted this reader's concern to be whether his estranged wife may be able to make a claim under the Property (Rights of Spouses) Act to an interest in any property which he acquires with his new partner.

The provisions of the property (Rights of Spouses) Act

The act makes provision for either spouse to make an application to the court for the division of property within 12 months after separation or the grant of decree of dissolution of marriage. Property is defined to include any real or personal property to which either spouse is entitled. For this reason, any property owned by one or both spouse, or in which that spouse has an interest, may be the subject of an application.

Where the property in question is the family home, there is a presumption that each party has a 50 per cent interest in it. However, if that property is not the family home, the court has wide discretion to determine the parties' interest in that property. The act lists a number of factors which will guide the court. These include:

Whether the applicant made a financial or other contribution towards the acquisition of the property.

Whether there was a family home.

The duration of the marriage.

Whether there is an agreement with respect to ownership or division of property, such as a prenuptial agreement.

Such other fact or circumstance which the justice of the case may require to be taken into account.

The answer

It is very likely that, on any application by the reader's wife for a share of property which he acquired since separation, the court would pay very close attention to the date on which that property was acquired. In fact, it would be quite surprising if the court would allow the wife's claim to succeed on the basis of those facts.

The short answer to the reader's question is that it appears that there is nothing to prevent his wife from applying for division of any property in which he has an interest. In fact, she is entitled to do so within 12 months after the divorce becomes final. However, because the court is vested with wide powers under the act, to do justice in all cases, it is my view that the reader's wife is unlikely to succeed on an application for a share of any property which the reader has acquired or is likely to acquire since the couple separated.

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.