Madge Robinson v Carol St. Aubyn Robinson
| Jurisdiction | Jamaica |
| Judge | P. Mason J |
| Judgment Date | 02 February 2023 |
| Docket Number | CLAIM NO. SU2020CV03010 |
| Court | Supreme Court (Jamaica) |
[2023] JMSC Civ 14
P. Mason J (Ag)
CLAIM NO. SU2020CV03010
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
The Property Rights of Spouses Act — Division of Family Home — What constitute the Family Home — Variation of the Equal Share Rule — Property acquired before Marriage.
Glenroy Mellish, Attorney-at-Law for the Claimant.
Wentworth Charles instructed by Wentworth S. Charles & Company Attorneys-at-Law for the Defendant.
The Claimant and the Defendant met in or about 1992, and later got married on the 29 th July, 2006, at the Prayer-Line Church of God in the parish of Saint Catherine. There are two children of the marriage, but only one is a minor. It is alleged by the Claimant that the property located at Greenwich Park in the parish of Saint Ann being all that parcel of land comprised in Certificate of Title registered at Volume 1201 Folio 400 of the Register Book of Titles (see marked for identification ‘CR2’ exhibited to the supplemental affidavit of the Defendant filed January 21, 2022), is where the parties resided as husband and wife and is therefore the family home. The property was owned by the Defendant prior to the marriage and remain solely owned by him. It was acquired by way of mortgage in or about 1989, which was later discharged on 1 st April, 2004.
The Claimant purported to have begun residing with the Defendant at the property in Greenwich Park from about 2002 until after their marriage. In or around 1993, the Claimant departed to the United States of America (“USA”) and sometime thereafter, sought residency. While living in the USA during the marriage, the Claimant began visiting Jamaica occasionally. The process of filing for the Defendant was started by the Claimant after marriage, and he migrated to live in the USA in or around January 2009, where they resided in their marital home in Miramar, Florida, USA. The Defendant rented the property in dispute in 2008, before migrating and it has since remained so. The marriage broke down resulting in the parties separating in 2017, and a Judgment for dissolution of marriage made by the Circuit Court for Broward County, Florida, USA on the 16 th October, 2019.
Many of these facts are essentially not in contention between the parties however, and not surprisingly due to the nature of these matters, there are several factual variances between the parties, specifically whether the Claimant truly resided at the premises as husband and wife for it to constitute the family home. I will highlight those facts that will determine the salient issues before the Court.
This claim concerns a dispute surrounding the alleged matrimonial property being the family home. By way of a Fixed Date Claim Form filed on 12 th of August, 2020, the claimant sought the following orders:
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“I. A Declaration that the Claimant is entitled to a one-half share in the family home at Greenwich Park in the parish of Saint Ann, Jamaica being all those lands comprised in the Duplicate Certificate of Title registered at Volume 1201 Folio 400 of the Register Book of Titles, pursuant to the Property (rights of Spouses) Act.
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II. An order restraining the Defendant whether by himself, his agents or otherwise from selling, leasing or in any other manner dealing with the property hereinbefore described, or any part thereof, or of disposing of any proceeds of sale of the said property or any part thereof, without the written consent of the Claimant or further order of the Court.
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III. An order that the said property be valued by a real estate appraiser to be agreed by the parties or failing an agreement to be appointed by the Court, each party bearing half the cost of such valuation.
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IV. An order that within 30 days of receipt of the valuation of the property the Defendant shall be at liberty to make an offer to purchase the share of the Claimant in the said property at a price equal to 50% of the appraised value of the property such offer to be made in writing and communicated to the Claimant or her legal representative.
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V. An order that the Registrar of the Supreme Court is authorized to sign all and any documents necessary to give effect to these orders, if either party neglects or refuses to sign any document(s) within fourteen (14) days of being requested to do so.
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VI. The Claimant's Attorney-at-law is to have carriage of sale.
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VII. Such other orders as this honourable court may deem fit.”
The Claimant supported her claim by Affidavits filed on August 12, 2020 and May 13, 2022. The Defendant in response to the claim, filed Affidavits on May 5, 2021, and January 21, 2022. She grounded her claim for the orders sought on these statements:
“…
3. That I was married to the Defendant on 29th July 2006 at Prayer Line Church of God in the parish of Saint Catherine. I exhibit as “MRI” a copy of the Marriage Certificate.
4. I was divorced from the Defendant on October 16, 2019. I exhibit as “MR2” a copy of the Final Judgment for Dissolution of Marriage made by the Circuit Court for Broward County, Florida, U.S.A.
5. We lived together at the home which is the subject of this application from around 2002 and we continued to live there after our marriage in July 2006. In or around 2007 1 began travelling to the United States every six months but I would always come back to that home when I am in Jamaica. I exhibit as “MR3” a copy of the duplicate certificate of title registered at Volume 1201 Folio 400.
6. After the marriage I began the process of filing for him since I was in possession of a United States Green card when we got married. He migrated to live with me in the United States in or around January 2009. We lived together until our separation which led to the eventual divorce.
7. The home in St. Ann was always considered our home while we were in Jamaica. Even after he carne to live with me in Florida we would stay at that home when we visited Jamaica. At the time of our divorce I received an order from the court in Florida which confirmed our agreement for me to retrieve from the home my clothing and other personal effects, a dining table, stove, washer, dishes and utensils, books and Bibles and a compressor.
8. I claim a share of the home in which we co-habited as husband and wife until he joined me in Florida in 2009 and even after that remained our abode when in Jamaica.
…”
The Claimant argues that the facts mentioned in paragraph 5 above sets out her entitlement to one-half share in the property. This is on the premise that the alleged family home while registered and solely owned by the Defendant remained throughout the marriage the main residence of the parties while in Jamaica.
The defendant is challenging this, however, and maintains, that he is the sole owner of the property on which the alleged family home is located. He contends that the property was never the family home, since the Claimant would stay with her parents at their residence while living in Jamaica. He further contends that during the visits to Jamaica, the Claimant would spend two to three nights at the Defendant's residence and the remainder of the trip at her parents' home in Spanish Town, St. Catherine. Hence, the parties never resided at the property together for more than three days in any given year prior to 2009, when the Defendant joined the Claimant in the USA.
The main disputed fact among the parties is whether the parties resided as a family at the property located at Greenwich Park in the parish of Saint Ann being all that parcel of land comprised in the Certificate of Title registered at Volume 1201 Folio 400. This question will be grounded by the credibility of the witnesses that appeared before me.
The issues to be determined are:
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1. Whether the property located at Greenwich Park in the parish of Saint Ann, being all that parcel of land comprised in the Certificate of Title registered at Volume 1201 Folio 400 constitutes the family home, in accordance with the provisions of the Property (Rights of Spouses) Act (hereinafter referred to as “PROSA”).
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2. Whether in the circumstances of this case, an application of the equal share rule would be unreasonable or unjust, so as to warrant a variation of the general rule.
I wish to thank both Counsel for their fulsome submissions as they greatly aided in the resolution of this matter.
The Claimant in her submissions asserts that the law does not require the parties to be living at the home continuously, and that it is sufficient that the parties cohabit there from time to time or habitually. In support of this submission, counsel relies on section 2 of PROSA regarding the definition of the family home and the judgment of Cunningham v Cunningham Claim No. 2009 HCV 02358. Counsel submits that based on the evidence of the Claimant at paragraph 4 of her affidavit in support, it should be accepted that the parties lived at the home from around 2002 and continued to do so after their marriage in 2006. Moreover, that the Claimant even after travelling to the United States every six months, would always come back to Jamaica and reside at the home in St. Ann.
Counsel maintains in his submissions that, even the Defendant has stated that the Claimant would come back to the home at St. Ann but for only two to three nights. Counsel further relies on paragraph 7 of the Claimant's affidavit which indicates that she was given permission from the court in Florida to retrieve from the home, her clothing and other personal effects. This, counsel submits, is additional proof that the property in question was the family home and as it stands before the Court, there is no admissible challenge to that conclusion.
In closing his submissions, counsel contends that the...
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