Thelma May Whilby-Cunningham v Leroy Augustus Cunningham
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop, J |
| Judgment Date | 16 September 2011 |
| Judgment citation (vLex) | [2011] 9 JJC 1604 |
| Date | 16 September 2011 |
| Court | Supreme Court (Jamaica) |
| Docket Number | IN CIVIL DIVISION CLAIM NO. 2009HCV02358 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION CLAIM NO. 2009HCV02358
Ms. Carleen McFarlane instructed by McNeil & McFarlane for the claimant
Mr. Nelton Forsythe instructed by Forsythe & Forsythe for the defendant
Matrimonial Property — Claim for 50% share in dwelling-house — Parties separated — Claim brought more than twelve months after date of separation — Whether the Property (Rights of Spouses) Act applicable — Which section of the Act applicable or not or whether the rules of common law and equity apply — House built by spouses on family land — Whether house is not family home because it is built on family land — Whether application of equal share rule ousted by absence of legal title in land on which house is built — the Property (Rights of Spouses) Act, ss 2, 4, 6, 11, 13 & 14.
Mrs. Thelma May Whilby-Cunningham, the claimant, and Mr. Leroy Augustus Cunningham, the defendant, enjoyed a common law union for approximately thirty years. The union commenced when they were teenagers and has produced two children who are now adults. After roughly thirty years, the parties formalized their arrangement through holy matrimony on July 19, 2006. That marital union, however, was to last no time as, within a year or so, the parties separated.
The separation of the parties prompted the commencement of proceedings by the claimant under the Property (Rights of Spouses) Act, 2004 (hereinafter called ‘the Act’) to settle the question of their entitlement to the house in which they live on land belonging to the defendant's family at Green Hill, Alexandria, in the parish of St. Ann.
The relief being sought by the claimant against the defendant, as set out in the Fixed Date Claim Form filed on June 3, 2009, is set out as follows:
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1. a Declaration of the respective interest of the parties in house situated on lands located at Green Hill, Alexandria in the parish of St. Ann; or, in the alternative,
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2. a Declaration that she is entitled to a fifty percent (50%) beneficial interest in the said house situated on lands located at Green Hill, Alexandria in the parish of St. Ann; or, in the alternative,
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3. a fifty percent interest in all the items of furniture purchased by the parties and located in the said dwelling house;
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4. an Order that the said dwelling house be valued by a valuator to be agreed between the parties, and that the defendant is to purchase the claimant's interest based on the agreed value, failing which there be such Order for sale or other subsequent Orders as may be just; and
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5. the Registrar of the Supreme Court be empowered to sign all necessary documents to give effect to the Orders made herein, in the event of any failure or unwillingness of either party to sign.
The defendant has not admitted the claim and has asked in his statement of case that the relief being sought by the claimant in the Fixed Date Claim Form be refused. Also, at the commencement of the trial, Mr. Forsythe raised three points by way of preliminary objection to the claimant's claim been brought pursuant to the Act. He contended that:
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(1) The Act does not apply as the separation of the parties had occurred more than twelve months before commencement of proceedings. The separation occurred in May, 2007 but the claim was filed in 2009 and as such the claimant ought not to be allowed to proceed with the claim pursuant to the Act. The claim was filed out of time.
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(2) The Court is being asked to adjudicate on facts before the passing of the Act but the Act does not have retrospective effect. For that reason, the Act does not apply.
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(3) The house, the subject matter of the claim, is not the family home within the meaning of the Act as it is built on land not owned by either party. The action is brought under section 6 (1) of the Act which deals with a presumption of the 50/50 share in the family home and since the house is not the family home, section 6 is inapplicable. Accordingly, the claim cannot be brought under the Act and the matter ought properly to be determined by reference to the rules of common law and equity.
Mr. Forsythe's contention that the Act does not apply to the claimant's case because the claim is brought out of time is based, fundamentally, on the provisions of section 13 of the Act. Section 13 reads, in so far as is relevant to these proceedings:
13.—(1) A spouse shall be entitled to apply to the Court for a division of property—
(a) on the grant of a decree of dissolution of a marriage or termination of cohabitation; or
(b) …
(c) where a husband and wife have separated and there is no reasonable likelihood of reconciliation;
(d) …
(2) An application under subsection (1) (a), (b) or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation…or separation or such longer period as the Court may allow after hearing the applicant.’
It is worthy to note, however, that apart from section 13, the Act also makes provisions under section 11 for applications to be made in respect of property dispute between spouses. Section 11 states, in so far as is absolutely relevant:
11.—(1) Where, during the subsistence of a marriage or cohabitation, any question arises between the spouses as to the title to or possession of property either party …may apply by summons or otherwise in a summary way to a Judge of the Supreme Court…’
(2) The Judge of the Supreme Court …may make such order with respect to the property in dispute under subsection (1) including an order for the sale of the property.
What section 11 clearly does is to give persons in a subsisting marriage (or a legally recognized union outside of marriage) the privilege to approach the Court in relation to property questions that may arise between them. On the other hand, section 13 gives the same right to spouses whose unions are no longer subsisting. Section 11 replaces, to an extent, the repealed section 16 of the Married Women's Property Act , while section 13 is a new provision allowing proceedings to be brought within a certain time following separation of the parties without a reasonable likelihood of reconciliation, dissolution of the marriage or termination of cohabitation, as the case may be.
Applications that are to be brought pursuant to section 13 are subject to a time line while those under section 11 are not. Mr. Forsythe has focused on the provisions of section 13 (1) to say that the claimant ought not to enjoy the benefit of the Act since the claim was filed after twelve months had elapsed since the parties' separation. He has put forward the stipulated time limit in section 13 (2) as a basis for the Court to reject the claimant's claim pursuant to the Act. The thrust of his contention is that the claimant has brought a claim pursuant to section 6(1) but given that the claim falls outside of section 13 because it is out of time, then section 6 (1), that invokes the equal share rule, cannot apply. As such, it would be the former rules of common law and equity that would have to be employed in settling the property question between the parties.
I have paid due regard to Mr. Forsythe's arguments and the first thing I have noted in examining the submissions on this point is that there is nothing on the claimant's statement of case indicating under which section of the Act the application is made. There is no mention of section 11, 13 or even section 6. This omission seems to run afoul of the provisions of the Supreme Court of Jamaica Civil Procedure Rules, 2002 (the CPR) that provides in rule 8.8 that a Fixed Date Claim Form must state, inter alia , the enactment under which a claim is made, if it is being made under an enactment. I believe the term enactment would mean not only the statute but the particular provision (s) of the statute that allows for the claim to be brought since often times different sections may require different things to be established by the claimant or the defendant, as the case may be.
I will, however, not treat the omission as being fatal given that the statute itself was identified in the claim and it is clear from paragraph 1 of the claim form that the claimant is asking the court to determine their respective interest in the property in question pursuant to the statute named in the claim. Also, no objection was taken by the defence on this point and the matter had been through first hearing (which would have operated like a case management conference) without an issue raised as to the omission of the section of the statute to which the claim relates.
Furthermore, there is no dispute that the parties, up to the time of the filing of the claim, were married. They were, therefore, spouses, properly- so -called, for the purposes of the Act. The Act, itself, also declares that it is, ‘AN ACT to Make provision for the division of Property belonging to Spouses and to provide for matters incidental thereto or connected therewith.’ It is evident in this case that it is a “spouse” who has approached the Court for assistance in resolving a matrimonial property question in keeping with the letter of the Act and so I will not drive her away from the judgment seat merely for the omission in stating the actual section under which the claim is being pursued.
If it is accepted that a subsisting marriage is one that has not yet been dissolved, then, it should really follow that in the case of parties who are separated, the marriage would still be viewed as a subsisting one. This is because from a legal stand-point, the parties are not, at all, free to marry. It would follow from this line of...
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