JIS News

The Senate yesterday (February 6), adopted the Report of the Joint Select Committee on the Family Property (Rights of Spouses) Act, and approved the Bill.
This will bring common law unions within the ambit of the provisions relating to the division of property, where there is a breakdown of the union and to address issues of maintenance of those spouses and their children.
The Bill, which received the full support of Government and Opposition Senators, was passed with 24 amendments.
This Bill seeks to give the Supreme Court, the Family Court and the Resident Magistrate’s Court jurisdiction to hear all matters relating to the property owned by either or both spouses and to make provision for the family home to be equally divided, except where such a division would not be equitable.
It also seeks to make provision for the Court to have the power to divide property owned by either or both spouses, except the family home. However, under the law, spouses must be single (unmarried) and have cohabited for a period of not less than five years.
Piloting the Bill, Attorney General and Minister of Justice, Senator A.J. Nicholson said it represented one of the major advances in social-based legislation during the past 25 years, as not since the erasing of the legal stigma attached to the circumstances of being born out of wedlock with the passage of the Status of Children Act in 1976, had the rights and obligations in this area of family law been so fundamentally addressed.
Explaining the background to the legislation, Senator Nicholson noted that the Bill was, in many respects, based on the recommendations of the Family Law Committee in its report on matrimonial law reform.
That committee was appointed in 1975 under the Chairmanship of the late Justice Ira Rowe, and its earlier recommendations for divorce reform led to the enactment of the Matrimonial Clauses Act in 1988.
The recommendations on Matrimonial Property Reform were intended to remedy the deficiencies of the existing law and to provide a statutory scheme, which would achieve an equitable division of assets between spouses upon the breakdown of marriage.
In the early 1990s, Senator Nicholson informed, a policy decision was taken to extend to cohabitants, the new statutory provisions regarding family property. This was in keeping with the policy to recognize persons in long-standing and stable common law unions for the purpose of certain legal benefits.He said there had been wide consultations on the issues involved and as one of the major advances in social legislation presented in recent years, government was proud of this achievement.
“Before now, under the law, there was no provision for the equitable division of property between spouses upon the breakdown of marriage. Nor has there been any provision for the division of property between parties to a common law union upon the breakdown of that union,” the Attorney General pointed out, adding that “the basic principle governing property in marriage has been, ‘you own what you buy’ and where there has been a dispute as to the ownership of property, proof of purchase or contribution to the purchase of the property has been required”.
He said the emphasis on the financial contribution had placed spouses who had never worked outside the home at an obvious disadvantage. Practical difficulties had also arisen regarding proof of contribution, since records of contribution were seldom kept and contribution had often been direct and difficult to establish and prove.
Senator Nicholson reasoned that while the Married Women’s Property Act effected an improvement on what had hitherto obtained, there were still deficiencies and there was the continuing gap in relation to common law unions which, though they might have lacked the “solemnization of marriage, were genuine relationships and the breakdown thereof was capable of inflicting bitter hurt on the parties involved”.
It was a recommendation of the Family Law Committee that provision be made for the improvement in this area of the law, for the benefit of the parties to marriage and common law unions, with respect to the treatment of property belonging jointly, or severally to those parties.
The Family (Rights of Spouses) Bill, by providing for access to the Courts by parties of a common law union, Senator Nicholson said, elevated the issues of maintenance of those spouses and their children to the same level as married couples and their children.Therefore, he told the Senate it was necessary to have one comprehensive piece of maintenance legislation dealing with this critical matter and bring to closure that seminal chapter in social transformation, which commenced with the Status of Children Act, “so that all can truly enjoy equal protection under the law as guaranteed by our Constitution”.
In supporting the Bill, Opposition Senator Dwight Nelson said the process over the years to bring the Bill to this stage had been “spectacularly intense” in respect of the depth of consultation that took place with the various civil society groups.
He said the Bill represented a platform for easing the hardships and difficulties in the society between spouses, whose union had irretrievably broken down. He also expressed approval at the fact that the legislation had, to a large extent, reinforced the rights of children whether they were born in or outside of marriage.
Senator Nelson noted that the statistics were showing an unwelcome trend as the country’s divorce rate had seen a significant increase over the last several years, while the rate of marriage had been on the decline.
He said that while he wasn’t supporting common-law relationships, “we have to recognize and accept the peculiarity and the reality of the Jamaican society, that this kind of relationship is a significant part of the statistics of man and woman relationships”.
Members of the Joint Select Committee who deliberated the Bill were Senators A.J. Nicholson, Chairman; Norman Grant; Navel Clarke; Burchell Whiteman; and Norman Horne. From the House were John Junor, Derrick Kellier, Dr. Donald Rhodd, Charles Learmond, Olivia Grange, Clive Mullings and Dr. St. Aubyn Bartlett.

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