Brown (Annette) v, Orphiel Brown

• Jurisdiction: Jamaica
• Judge: MORRISON, J.A. , PHILLIPS, J.A. , COOKE, J.A.
• Judgment Date: 26 March 2010
• Neutral Citation: JM 2010 CA 37
• Judgment citation (vLex): [2010] 3 JJC 2602
• Court: Court of Appeal (Jamaica)
• Date: 26 March 2010

[2010] JMCA Civ 12

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE COOKE, J.A THE HON. MR JUSTICE MORRISON, J.A THE HON. MISS JUSTICE PHILLIPS, J.A

BETWEEN

ANNETTE BROWN

APPELLANT

AND

ORPHIEL BROWN

RESPONDENT

Gordon Steer and Ms. Deborah Dowding, instructed by Chambers, Bunny & Steer for the appellant.

Miss Sherry Ann M ^c Gregor, instructed by Nunes, Scholefield, Deleon & Co. for the respondent.

MATRIMONIAL PROPERTY - Beneficial interest - Property (Rights of Spouses) Act, s. 5 - Whether the Act is applicable to the claimant's claim to 50% share of property - Whether the property is the family home

1 [1] The Property (Rights of Spouses) Act ('the Act') came into operation on the 1 ^st April 2006. The appellant's marriage to the respondent was dissolved on the 13 ^th May 2005. The important question raised in this appeal is as to whether or not the provisions of the Act are applicable to her claim for a 50% share of property located at Barnett Place, Mandeville in the parish of Manchester. The property, she asserts, was the family home within the context of section 6 of the Act (see paragraph 14 of the affidavit of the appellant dated the 21 ^st May, 2007).

2 [2] The appellant's claim form was filed in January 2007. In that same month and subsequent to it, she, in a notice of application for court orders, sought:

''An order for leave to present the Application for division of the matrimonial (sic) home out of time."

3 The ground on which the order was sought was:

"That under section 13(2) of the Property Rights of Spouses Act 2004 (sic) makes allowance for applications brought after the requisite time for filing applications (sic) have passed."

4 This application was necessary as her claim being brought on the grant of the dissolution of a marriage (section 13 (1) (a) of the Act), was subject to section 13(2) which states that such an application "shall be made within twelve months of the dissolution of a marriage ... or such longer period as the court may allow after hearing the applicant".

5 The respondent's affidavit in opposition to the application consisted of two sentences which were:

• "1. There has been substantial delay and or neglect by the claimant.

• 2. That were leave granted as prayed the same would lead to the prejudice of the defendant."

6 On the 28 ^th June 2007, leave was granted to the appellant to present her application out of time.

7 [3] The appellant's claim then proceeded to trial. At the start of the proceedings, Mr. Keith Smith, counsel for the respondent raised the issue of "whether or not in these proceedings the court had jurisdiction to hear the matter". The learned trial judge (Marsh J.) answered in the negative. He pronounced that:

"It is my view that the Act began on the 1 ^st day of April 2006 and provides courts with the powers as of the 1 ^st day of April, 2006."

8 Accordingly, since the divorce predated the coming into operation of the Act, the court had no jurisdiction to hear the claim. The learned trial judge's reasoning was founded on his stated premise that:

"There is a fundamental legal principle that the law does not accommodate retroactivity and efforts to impose liabilities."

9 Marsh J. agreed with and cited the judgment of Sykes J. in Stewart v Stewart (Claim No. 2007 HCV 0327) where the latter in paragraphs 19 and 20 said the following:

• "19. The wording of section 13 (2) also puts the matter beyond doubt. It permits an application under the Act when the specified events of section 13 (1) have occurred. If the events occurred before the Act became law then logically it cannot apply to events that occurred before the Act became law. Before the Act came into force it was not the law. Thus the law can only speak from the time it came into force. Courts do not lightly conclude that a statute has retrospective effect. I conclude that Mr. Wilkins's submission that I have no jurisdiction to hear the matter, for the reasons given, is well founded.

• 20. I do not think I have the power to enlarge time to accommodate a claim under a statute to give the court jurisdiction over a state of affairs that would have given rise to a claim under the Act had the Act been in force at the time of the occurrence of the specified acts but which, unfortunately for Mrs. Shirley-Stewart, was not in force at the material time. However, if I am wrong I will consider whether 22 West Strathmore Drive was the family home."

10 [4] In resolving this issue it is imperative to undertake a comprehensive approach to the various significant sections which comprise the Act. In this regard I endorse the approach recommended by Brandon J. in Powys v Powys [1971] 3 All ER. 116 at 124 (e) where he said:

"The true principles to apply are, in my view, these: that the first and most important consideration in construing an Act in the ordinary and natural meaning of the words used; that, if such meaning is plain, effect should be given to it; and that it is only if such meaning is not plain, but obscure or equivocal, that resort should be had to presumptions or other means of explaining it."

11 [5] The commencement to the Act is heralded as follows:

"An Act to Make provision for the division of Property Belonging to Spouses and to provide for matters incidental thereto or connected therewith."

12 In section 2 (1) of the Act it is stated that "spouse" includes—

• "(a) a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years;

• (b) a single man who has cohabited with a single woman as if he were in law her husband for a period of not less than five years,

13 immediately preceding the institution of proceedings under this Act or the termination of cohabitation, as the case may be."

14 Further section 2(2) states:

"2 (2) The terms "single woman" and "single man" used with reference to the definition of "spouse" include widow or widower, as the case may be, or a divorcee."

15 The legislature by its definition of "spouse" has recognized and given effect to the prevalence of so called common-law relationships in our country. This recognition will have fundamental and salutary consequences as between "spouses" hereafter, following the termination of "man and wife relationships" not evidenced by traditional legal criteria.

16 [6] It cannot be said that the commencement to the Act speaks to whether or not its provisions should only be applicable if the divorce or termination of the relationship was effected after the Act came into operation. It is to be noted that the Act was signed by the Governor General on the 10 ^th March, 2004, but only came into operation on the 1 ^st April 2006. It does seem somewhat curious that persons who were divorced or terminated their relationship in this 2 year period should be denied any benefit as provided by the Act.

17 [7] In respect of the application of the Act, it is only section 3 which specifically addresses this aspect. This section is set out below:

• "3 (1) Except as otherwise provided in this Act and subject to subsections (2) and (3) of this section and section 6, the provisions of this Act shall not apply after the death of either spouse and every enactment and rule of law or of equity shall continue to operate and apply in such case as if this Act had not been enacted.

• (2) The death of either spouse shall not affect the validity or effect of anything done or suffered in pursuance of the provisions of this Act.

• (3) If, while any proceedings under this Act are pending one of the spouses dies, the proceedings may be continued and be completed; and any appeal may be heard and determined and the Court may make such order as it thinks fit in the circumstances of the case as if the spouse had not died."

18 [8] I would think that in a section which deals with the non-applicability of the Act, then, if it were so, I would expect the legislature to say in unambiguous language that the Act does not apply to divorces or the termination of relationships which took place before the date on which the Act came into operation. Section 3 of the Act has to be read in conjunction with section 24 of the Act which states:-

"24. The commencement of this Act shall not affect —

• (a) any legal proceeding in respect of property which has been instituted under any enactment before such commencement; or

• (b) any remedy in respect of any such legal proceeding to enforce or establish a right, privilege, obligation or liability acquired, accrued or incurred before such commencement,

and any such legal proceeding or remedy may be continued or enforced as if this Act had not been brought into operation."

19 This savings section does not preclude a claimant who has not instituted proceedings under the old regime to pursue a cause under the Act.

20 [9] I now advert to section 4 of the Act which states:-

"4. The provisions of this Act shall have effect in place of the rules and presumptions of the common law and of equity to the extent that they apply to transactions between spouses in respect of property and, in cases for which provisions is made by this Act, between spouses and each of them, and third parties."

21 Complementary to this section, sections 16 and 17 of the Married Women's Property Act were repealed.

22 [10] By section 4 of the Act, the legislature directed that there was to be an entirely new and different approach in deciding issues of property rights as between spouses. Section 4 is a directive to the courts as to what the approach should be. In Carson v Carson and Stoyek [1964] 1 WLR 511 at 518, Scarman J. (as he then was) had to examine sections 1, 2, and 3 of the English Matrimonial Causes Act 1963. These sections are now reproduced:-

"1. Any presumption of condonation which arises from the continuance or resumption of...