Pansy Ionie Downer-Spence v Donald Hubert Spence

• Jurisdiction: Jamaica
• Judge: Lindo J.
• Judgment Date: 23 February 2016
• Neutral Citation: [2016] JMSC Civ 23
• Date: 23 February 2016
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO 2014 HCV 01868

[2016] JMSC Civ. 23

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO 2014 HCV 01868

Between

Pansy Ionie Downer-Spence (also known as Panzie Ionie Spence)

Claimant

and

Donald Hubert Spence

Defendant

Mr Gordon Steer and Mrs K. Parke instructed by Chambers Bunny and Steer for Claimant

Miss Tamiko Smith and Mr Obiko Gordon instructed by Frater Ennis and Gordon for the Defendant.

MATRIMONIAL PROPERTY - Division of property - Claim for 50% share in dwelling house - Parties separated - Whether property in question is the family home - Property (Rights of Spouses) Act, Sections 2, 6, 7, 13 and 14(1)

Lindo J.

1 This is an application by way of Fixed Date Claim Form under the Property (Rights of Spouses) Act, filed on April 16, 2014, in which the claimant is seeking orders inter alia that property located at Lot 107 Ridgewood Avenue, Nightingale Grove, Bushy Park in the parish of Saint Catherine is owned by herself and the defendant in equal shares, that the property be sold and that the defendant accounts for all rental collected on the property since the separation.

2 There is no dispute that the parties were married on August 27, 1966 and that during the course of the marriage, the property, subject of the claim was purchased. It is also not in dispute that the certificate of title to the property shows that the parties hold the legal interest as joint tenants.

3 The claimant's case is set out in her affidavit filed with the Fixed Date Claim Form and the affidavit in response to the defendant's affidavit filed on August 27, 2014 while the defendant's case is stated in that affidavit. At the hearing, the two parties were subject to extensive cross examination.

4 Counsel for both parties have provided the court with detailed written submissions supported by authorities which I will not attempt to repeat, and neither will I attempt to repeat all the evidence of the parties. The parties and their Counsel however, can rest assured that I have carefully reviewed and considered the evidence and submissions as well as the authorities cited.

5 The issues which fall to be determined are:

1

Whether the property in question is the family home; 2. Whether the presumption of equal share has been displaced

6 Section 14 (1) of the Property (Right of Spouses) Act, (The Act) provides that on an application under section 13, the Court shall divide the family home in accordance with section 6 or 7 of the Act.

7 In relation to the division of the family home, section 6 of the Act, states:

‘6.—(1) Subject to subsection (2) of this section and sections 7 and 10, each spouse shall be entitled to one-half share of the family home

(a) on the grant of a decree of dissolution of a marriage or the termination of cohabitation;

(b) on the grant of a decree of nullity of marriage;

(c) where a husband and wife have separated and there is no likelihood of reconciliation.

(2) Except where the family home is held by the spouses as joint tenants, on the termination of the marriage or cohabitation caused by death, the surviving spouse shall be entitled to one-half share of the family home.

8 The ‘family home’ is defined under section 2 of the Act as:

‘[t]he dwelling house that is wholly owned by either or both of the spouses and used habitually or from time to time by the spouses as the only or principal family residence together with any land, buildings or improvements appurtenant to such dwelling house

and used mainly for the purposes of the household but shall not include such a dwelling house which is a gift to one spouse by a donor who intended that spouse alone to benefit.’

9 I have no doubt that the home in question is the family home. I find that it falls squarely within the definition set out in Section 2 of the Act. An examination of the undisputed evidence reveals that the parties enjoyed a relationship which spanned over forty years. Both parties have given evidence that they lived together at the premises as man and wife and that the claimant went to the United States of America (USA) to seek employment in or about 1986 while the defendant remained at the home and that in or around 1996 the defendant went to the USA with the claimant while their daughter continued to live at the home, a part of which was rented.

10 As at 1976 when the property was purchased, the home was wholly owned by both parties. I find on the evidence that between the date of purchase and when the claimant went to live and work in the USA it was used habitually as the only family residence and even after the defendant went to live overseas, it was used from time to time by them both, as the principal family residence. The parties retained ownership of the property even while they continued to live together as husband and wife in...