The usual assumption is that assets are split evenly among spouses should they divorce or cease to cohabitate.

In the first part of this series, we will explain the presumption of equity and how it applies and the second will tackle what factors can be used to help the court make a determination when dividing marital property.

In Jamaica, the division of property in divorce is provided for in the legislation named Property Rights of Spouses Act (PROSA).

In Section 6, there is a presumption of equal shares. However, that presumption is only in relation to the family home.

For the purpose of these proceedings, the family home is the property owned wholly by one or both spouses and functions as the main residence together with any buildings or improvements made to the property.

Also important to note is that spouse also refers to unmarried couples. The legislation acknowledges a spouse as any single man or woman living with another single man or woman, as husband and wife for at least five uninterrupted years prior to separation.

Therefore, both the definition of spouse and family home have to be met for the presumption to apply.

Should both of those criteria be met, the presumption still applies to the family home alone as stated in Section 6.

Therefore, any other property, money or any other kind of asset, will be divided based on arguments made in court during the proceedings.

What is important to note is that Section 6 is not absolute and merely a presumption. This means that it can be deviated from if the circumstances warrant such deviation.

In fact, Section 7 of the law gives the court the power to hear applications from the the respective parties as to why they may be of the belief that a one-half share split would be unjust. That is to say, should any of the spouses believe that even though the property constitutes the family home, it would be unfair to have it split evenly based on certain circumstances surrounding the property and/or the marriage, they would be allowed to make that argument to the court.

There are some contributing factors that could help the court determine if a one-half split would be inequitable.

Some of these include:

1) The property was inherited by just one of the spouses and the gifting party did not contemplate that the property would be shared with a spouse,

2) It was already owned by one spouse prior to cohabitation, and

3) the marriage was of a short duration.

This list is not exhaustive, so the court can consider other factors. The list is also not a combined test and, therefore, there is no need for multiple factors to be present. The parties must make applications for the division of other property, as there can only be one family home. Any other property would fall under “Other property” and must be dealt with separately.

A couple could, of course, opt out of the law by making an agreement (prenup) between them as to how properties would be divided in the event of separation. However, the court must be satisfied that the circumstances surrounding the agreement do not cause an injustice and then it will give effect to the prior agreement.

Without the presence of an agreement, the court is bound to act in compliance with PROSA when dividing the property.