Matrimonial Property
| Author | Fara Brown |
| Profession | Attorney-at-law practising in Jamaica for over 30 years |
| Pages | 176-231 |
5. Matrimonial Property
1. INTRODUCTION
2. HISTORICAL DEVELOPMENT OF THE LAW
3. THE PROPERTY (RIGHTS OF SPOUSES) ACT
4. PROCEDURAL ASPECTS OF PROSA
5. THE WAY FORWARD
INTRODUCTION
Janet and John started living together in 1995. They had two
children in the next three years and were very happy together.
When John got a job on a ship, he rented a house for Janet,
the two children and his elderly widowed father, Edgar. Janet,
a simple woman but very industrious, looked after the children
and Edgar well and even managed to nd a job at a factory
nearby. She saved diligently. John was very proud of Janet
and having decided that she was clearly ‘wife material’, the
two of them set about planning their nuptials for when next he
returned to Jamaica.
When John returned, Janet explained that the landlord was
about to give them notice, and suggested that the money for
the wedding along with her savings should be used to pay
down on a house. In late 2001, two days before they were to
sign the purchase papers, Janet and John had a big argument
and Janet left to stay with her sister in the country for a week.
Since John was left with the children and his father, he took
Edgar to the lawyer’s ofce, and the house was signed over to
Edgar and John as joint tenants. The night before he left to
resume work duties, Janet and John made up and decided to
get married on his next shore leave.
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Early in 2002, Janet, the children, and Edgar moved into the
new house, and when John returned later that year, they were
married. John, in his wedding speech declared, ‘This house
is for me, my bride, and the children.’ John sent money for
the mortgage payments, and Janet used her money to run the
house, care for the family, and effect whatever repairs were
necessary. Edgar died in 2006.
When in 2011, John lost his job and returned permanently to
Jamaica, the marriage started to deteriorate. Janet moved to
the ‘small side’ of the house in 2013, and all marital relations
ceased at that time.
Six months ago John obtained a decree absolute. Janet now
sits in your ofce. She has been served with a summons to
vacate the property. She admits that she did receive a notice to
quit ‘some time ago’, and further explains, ‘since is my house
too, I didn’t pay it any mind’.
HISTORICAL DEVELOPMENT OF THE LAW: THE
MARRIED WOMEN’S PROPERTY ACT
The Married Women’s Property Act (MWPA) came into effect
in the late nineteenth century along with the Maintenance Act
as legal measures to address the plight of women and children.
They came about as a direct result of agitation for recognizing the
rights of women in England and passed into Jamaican law and
other Commonwealth Caribbean territories at the same time. The
MWPA expressly recognized the right of the married woman to a
separate legal identity with respect to property holdings from her
husband,1 and consequent upon that, the right to sue and be sued,
to own property and other assets in her own right, and to be liable
in contract tort and other areas of law.2 Although the MWPA is
primarily recognized because it gave the courts specic power to
deal with property matters in relation to a married woman, the far-
1. Sections 2(a) and 3.
2. Sections 2(b), (c), and (d).
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178
reaching effect of this legislation by virtue of giving married women
a separate legal identity cannot be underestimated. Although
sections 16 and 17 of the Act have now been repealed by the
Property Right of Spouses Act (PROSA), the rest of the Act is very
much in force and is, in fact, the implicit foundation of the legal
basis for most proceedings and legal rights of redress concerning
married women.
Property Applications under the MWPA
Sections 16 and 17 of the MWPA allowed applications to be made
to the court to decide questions of ownership in property with
which a married woman might be concerned. Although it is these
applications to the court which provided the procedural gateway
for the development of the law on division of matrimonial property,
the principles by which the judges should be guided when hearing
these applications was something that was to evolve over time
through the decisions and judgments in various cases.
Initially, the courts followed the basic rules of property ownership
with the result that invariably the husband would be declared the
sole legal owner. This approach left the wife and children in an
extremely vulnerable position with little safeguards.3 This led the
courts to develop and protect the wife’s occupation rights, and
the concept of the matrimonial home was fashioned to provide a
safe place for the wife and children to reside, initially, as a form of
protection from domestic violence. We see, therefore, the court’s
efforts to ensure that the wife could remain in the property of which
the husband was trying to get exclusive possession or when by
his nancial negligence, a third party might seek to gain control
over the property. Thus, the wife’s interest in the matrimonial
home was primarily seen to be a right of occupation, not a right of
ownership. The reason for this apparently lopsided approach was
that, usually, all transactions as to ownership were in the name of
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