Vilma Wilson Malcolm v Junior Washington Malcolm

• Jurisdiction: Jamaica
• Judge: Anderson K., J,Hon. K. Anderson, J.
• Judgment Date: 01 November 2013
• Neutral Citation: [2013] JMSC Civ 161
• Docket Number: CLAIM NO. 2011 HCV 00731 CONSOLIDATED WITH: CLAIM NO. 2011HCV 01107
• Court: Supreme Court (Jamaica)
• Date: 01 November 2013

[2013] JMSC Civ 161

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 00731

CONSOLIDATED WITH:

CLAIM NO. 2011HCV 01107

In the Matter of the Property (Rights of Spouses) Act 2004

Between

Vilma Wilson Malcolm

Claimant

and

Junior Washington Malcolm

Defendant

In Civil Division

In the Matter of the premises registered at Volume 1309 Folio 578

and

In the Matter of the Partition Act

Between

Junior MalColm

Claimant

and

Vilma Mae Wilson-Malcolm

Defendant

Carlene McFarlane , instructed by McNeil & McFarlane for Junior Malcolm, in both claims .

Donovan Williams , instructed by Donovan Williams & Co., for Vilma Wilson Malcolm, in both claims .

APPLICATION UNDER PROPERTY RIGHTS OF SPOUSES ACT — PARTITION ACT APPLICATION — APPLICATIONS FOR DIVISION OF MATRIMONIAL PROPERTY — FAILURE TO DENY ALLEGATION IN CLAIMANT'S STATEMENT OF CASE — FAILURE TO PROVIDE REASONS FOR PUTTING CLAIMANT TO PROOF OF ALLEGATION — HOW TO MAKE APPLICATION IN RELATION TO SECTION 7 OF PROSA — EFFECT OF FAILURE TO MAKE APPLICATION IN RELATION TO SECTION 7 OF PROSA — APPLICABILITY OF PRESUMPTION OF EQUAL DIVISION — SECTION 6 OF PROSA — DIVISION OF PERSONAL PROPERTY ITEMS — SECTION 14 OF PROSA

Anderson K., J

1 This matter pertains to claims which were consolidated, by earlier order of this court. In respect of Claim No. 2011HCV00731, Vilma Wilson Malcolm, (hereinafter referred to as “Ms. Wilson”), instituted her claim against Junior Washington Malcolm (hereinafter referred to as “Mr. Malcolm”). These two persons are hereafter referred to in these reasons for judgment and the order following upon same, as, “the parties.” That claim was commenced with the filing of a fixed date claim form, on February 11, 2011. The primary reliefs sought therein, are that the premises which is jointly owned by the parties at 58 “Waterhouse Pen,” now called, “Portview Mews,” in the parish of St. Andrew and being all the land comprised in the Certificate of Title registered at Volume 1309, Folio 578 of the Register Book of Titles, be put up for sale, with Mr. Malcolm being given first option to purchase Ms. Wilson's share thereof, which is to be determined by this court, as part and parcel of said claim. In said claim, Ms. Wilson is seeking for this court to order that she be entitled to an equal share of the said premises, which in essence, translates to an equal share of the net value of same since she is asking that the same either be sold on the open market, or alternatively, that her 50% interest in same, be purchased by Ms. Malcolm. Ms. Wilson is also seeking certain ancillary reliefs, if this court orders Lot 58, Portview Mews, which presently has a townhouse situated on it, to be sold. Additionally, Ms. Wilson is seeking though her claim, an order that Mr. Malcolm pay to her an “occupation rent” in the amount of $30,000.00 per month for the period of six years immediately preceding the filing of her claim and continuing until, “the family home” is sold, or Mr. Malcolm acquires her interest therein, or gives up his occupation thereof, whichever is earlier. The only other primary relief being sought in said claim, is for all goods and property that were in “the matrimonial home,” at the time when the parties” marriage was dissolved by this court, be divided between the parties, “in a fair and equitable manner.” (The quoted words are some of the precise words used by Ms. Wilson in her fixed date claim form).

2 Ms. Wilson's claim was brought before this court, pursuant to the provisions of Section 13 of the Property (Rights of Spouses) Act (hereinafter referred to as “ PROSA” ). In that regard, it is important to note that Ms. Wilson and Mr. Malcolm were once married, but that marriage was dissolved, by order of this court, on October 6, 2009. Since her fixed date claim form was filed on February 11, 2011, this would therefore mean that an application for relief under PROSA , could only properly have been made by Ms. Wilson, if she obtained an extension of time for the filing of her claim in that regard. This is so because, Section 13(2) of PROSA makes it clear that where a spouse applies to this court for a division of property on the grant of a decree of dissolution of marriage, such application shall be made within twelve months of that dissolution of marriage, “or such longer period as the court may allow after hearing the applicant.” It was therefore, no doubt, because Ms. Wilson was mindful of that particular statutory provision that she had applied for an extension time. Following on her application for that extension of time, the same was granted by order of this court as made on May 2, 2011 and by virtue of that court order, it was further ordered that Ms. Wilson's fixed date claim form and affidavit in support — which was also filed on February 11, 2011, shall stand. That order granting an extension of time, although following on an application for an extension of time having been filed post — one year after dissolution of the parties” marriage, was perfectly in order, since Jamaica's Court of Appeal has recently ruled, in the case: Angela Bryant-Saddler and Samuel Saddler — Supreme Court Civil Appeal No. 57/2009, that an application for an extension of time under Section 13(2) of PROSA can be filed even after the one year limitation period, in the absence of an application for an extension of time having been successfully made by a party, has expired. In that regard, it is important to note that the Court of Appeal did not, on that particular legal point, that being as to whether an application for an extension of time can only be successful, if filed before the one year limitation period has expired, follow its earlier ruling in the case: Allen v Mesquita— [2011] JMCA Civ 36.

3 The other claim which is now at hand was brought by Mr. Malcolm against Ms. Wilson, by means of fixed date claim form and is recorded as Claim No. 2011HCV02007. His claim was filed on March 10, 2011. In that claim, Mr. Malcolm is primarily seeking an order of this court that Ms. Wilson be adjudged as being entitled to a 25% interest, “in the matrimonial house” situated at Lot 58 Portview Mews, in the parish of St. Andrew, or in the alternative, that the court determines the parties” respective interest in said premises and permit Mr. Malcolm, the option to purchase whatever may be determined by this court, as being Ms. Wilson's interest in said premises within 30 days of this court's order in that regard. Mr. Malcolm is also seeking certain ancillary reliefs pertaining to the proposed sale of that which Mr. Malcolm has pertinently described as being, “the matrimonial home” and which Ms. Wilson has pertinently described as being, “the family home.”

4 It is clear therefore, that the parties are united in their desire to have this court determine their respective share in the relevant premises at Lot 58 Portview Mews and also, to order that the same be sold, either by Ms. Wilson, in terms of her share thereof, to Mr. Malcolm or alternatively, on the open market. The extent of the parties” share in that premises is what is being seriously disputed in the first instance, and in addition, the claim by Ms. Wilson for “occupation rent” is also being seriously disputed.

5 Interestingly enough, Mr. Malcolm has instituted his claim pursuant to the provisions of Jamaica's Partition Act . This is surprising to this court, because, the Partition Act is an earlier statute than the Property (Rights of Spouses) Act . The Partition Act was enacted into law on June 5, 1873, whereas the Property (Rights of Spouses) Act , was enacted into law in 2004, but did not come into force and effect until April1, 2006. The former in time, contains within it, general provisions authorizing this court, in appropriate circumstances, to order that property be partitioned between persons. The provisions of the Partition Act , were never intended to apply as between spouses, in circumstances wherein, a partitioning or property as between themselves, was being sought. This court so concludes, because otherwise, why then would Parliament have thought it necessary to pass into law and put into force and effect on January 1, 1887, the Married Women's Property Act ? That last-mentioned Act, which is the precursor to the Property (Rights of Spouses) Act , was subsequently repealed and replaced by PROSA .

The Property (Rights of Spouses) Act has significantly altered the legal landscape as regards property disputes, not only where such disputes occur as between spouses, but also, where such disputes occur as between former spouses. The Married Women's Property Act (hereinafter referred to as the MWPA ), provided absolutely no protection, in terms of a property dispute, to either former spouse, since the provisions of MWPA were only available to determine questions arising between persons who were husband and wife at the time when an application under that Act was made (See: Mowatt v Mowatt– [1979] 16 JLR 362, esp. at p. 363, per Carberry, JA). This legal scenario has been changed since the coming into force and effect of PROSA . Additionally, PROSA has expanded the definition of “spouse” to include persons who have been in a common law union with one another, being man and woman, for a period of five years or more. See Section 2(1) of PROSA , in this regard. On the other hand, the MWPA's provisions had never, at anytime, applied as between a male and female in a common law union with one another, regardless of the period of time during which such union had subsisted and also, regardless of the amount of property, whether real or personal, derived by either or both of those parties during the subsistence of the common law union between them.

6 Jamaica's Court of Appeal has further extended the significant and far-reaching impact of PROSA , by having adjudged, in the case — ...