Statute-based Property Adjustment Regimes (All Jurisdictions Except Antigua and Barbuda, Montserrat, St Kitts and Nevis)

• Pages: 224-273

CHAPTER 10

STATUTE-BASED PROPERTY ADJUSTMENT REGIMES

(all jurisdictions except Antigua and Barbuda,

Montserrat, St Kitts and Nevis)

PART ONE

THE STATUTORY REGIMES

1. INTRODUCTORY

As is true for much of the substantive family law of the CC region, the law governing an appli-

cation for a property adjustment order is equally as varied. Depending on the CC jurisdiction

concerned, property adjustment applications are subject to essentially two se parate regimes –

one statutory and the other, the common intention constructive trust based on the law of

equity. In the case of St Lucia, there are two statutory regimes – one based on the French civil

law community of property regime, and the other, the equivalent of the property order provi-

sions contained in the MCA 1973, England. In this chapter, the respective property regimes of

the CC jurisdictions will be identified; classified by jurisdiction; examined in detail; and where

relevant, any differences in judicial approaches to the various property regimes, highlighted

and discussed.

2. A JURISDICTIONAL OVERVIEW

The statutory property regimes of the under-mentioned jurisdictions cover a wide spectrum of

legislative models, which include in the case of Barbados, Belize, Guyana, Jamaica and

Trinidad and Tobago, applications for property adjustment orders by the statutory spouse

upon termination of cohabitation. Those regimes may conveniently be grouped by jurisdiction

and applicable legislation as follows, in the case of:

a. Anguilla, BVI, Dominica, St Lucia, SVG, The Bahamas, Trinidad and Tobago – the

equivalent of the MCA, 1973, UK with tailpiece intact – applicable to the married spouse

only;

b. Grenada – the equivalent of the MCA 1973, UK with tailpiece removed – applicable to

the married spouse only;

c. Guyana – Married Women’s Property Act Cap. 45:04(MWPA) – applicable to the quali-

fying married spouse and statutory spouse;

d. Barbados – The Family Law Act CAP.214(FLA) – applicable to the married spouse and

statutory spouse;

e. Belize – The Supreme Court of Judicature (Amendment) Act CAP. 91(SCJAA) – applica-

ble to the married spouse and the statutory spouse;

f. Jamaica – the Property Rights of Spouses Act 2004 (PROSA) – applicable to the married

spouse and the statutory spouse.

g. St Lucia – while transfer and property settlement order applications in respect property

which is not community property is governed by ss.24 and 25 of the Divorce Act, Cap

4.03, the provisions of which are based on the MCA 1973, England, property which qual-

ifies under the civil law concept of community property and separate property under the

relevant Articles of the Civil Code Ch 242, are governed by s.45 of the Divorce Act

Cap.4.03.

h. Trinidad and Tobago – The Cohabitational Relationships Act Chap. 45:55 (CRA) – appli-

cable to the statutory spouse.

3. THE STATUTORY PROPERTY REGIME – Anguilla, BVI,

Dominica, Grenada, St Lucia, SVG, The Bahamas, Trinidad and

Tobago1

A Introductory

The statutory provisions contained in the respective matrimonial legislation of the above juris-

dictions represent, as is the case with respect to England, with the passage of the MPPA 1970,

which Act was consolidated by the MCA 1973, a complete overhaul of the matrimonial prop-

erty laws with respect to the entitlement of a spouse to apply for and obtain a property

adjustment order, consequent on the dissolution of marriage, nullity of marriage or judicial

separation proceedings, as the case may be.

Spousal property rights, prior to the reception of the MCA 1973 England, in the case of

Dominica and Grenada, and the passage of the equivalent matrimonial provisions in respect

of the other above-mentioned CC jurisdictions, were governed by the common intention

constructive trust.2

Under the current matrimonial regime of the above jurisdictions, on the granting of a

decree of divorce, nullity of marriage or judicial separation, whether before or after the decree

is made absolute, the court may make an order for transfer of or settlement of any property

specified in the order, includinga variation order in respect of any ante-nuptial or post nuptial

settlement, for the benefit of a party to the marriage or a child of the family, if any, or any

other person specified in the order.

Property which is subject to a property adjustment order is divided into two broad cate-

gories – matrimonial and non-matrimonial property. Matrimonial property is property

acquired during the marriage or property acquired during any period of cohabitation prior to

marriage as the case may be, and includes property acquired otherwise than by gift or inheri-

tance, while non-matrimonial property includes pre-marriage assets acquired by gift or

inheritance.

B The statutor y factors: preliminary points

In making a spousal property adjustment order, in the above-mentioned CC jurisdictions, the

factors which the court takes into account are:

a. the same as those applicable to an application for a spousal maintenance order made to

the high court. Accordingly to avoid duplication, the statutory guidelines and supporting

Chapter 10: Statute-Based Property Adjustment Regimes 225

1 Anguilla – ss.25, 26, MPPA RSA c. M60; BVI – s.28, MPPA 1995; Dominica and Grenada– ss.24, 25,

MCA 1973 England; St Lucia – s.24, 25, Divorce Act Cap.4.03; SVG – ss.32, 33, MCA CAP.239; The

Bahamas – ss.28, 29, MCA CH. 125; Trinidad and Tobago – ss.26, 27, MPPA Chap.45:51

2 See Chapter 11.

case law applicable to a property adjustment order will not be examined in any detail in

this chapter as those factors have already been examined in Chapter 9, PART TWO;

b. subject to the statutory tailpiece provision, except in the case of Grenada, where the tail-

piece provision is deemed not to be apply. As such, the court applies to the statutory

factors, the reasonable requirements test, and in the case of Grenada, with respect to Big

Money cases, the equal sharing yardstick.

C The statutory factors: an overview3

According to the relevant provision of the respective matrimonial legislation of the above-

mentioned jurisdictions, the court is under a duty in making a property order, whether a

transfer, adjustment or variation order, to have regard to all the circumstances of the case and

take into account, inter alia, the statutory factors in so doing. In applying the statutory factors

to the facts of a case, it is to be noted that certain factors will be relevant, regardless of the

factual matrix of a particular case; that in some instances, only some of the factors may be rele-

vant; while in other instances, a specific factor may be the deciding factor in the making of a

property adjustment order

The dictum of Saunders J.A. in the BVI court of appeal case of Stonich v Stonich4is instruc-

tive as to the judicial approach taken in applying the statutory factors to the particular facts of

a case. Saunders J.A. noted,

One of the useful features of the MPPA is that it gives the court a broad discretion in appor-

tioning assets, built up over the course of the marriage. In so doing the court must consider the

various factors the legislature has asked it to take into account and then arrive at a solution that

in all the circumstances is fair to the parties.5

Saunders J.A. further pointed out that there was no preferential ranking of the factors to be

taken into account and that while the court is required to consider all the factors, the facts and

circumstances of a case may call for a particular factor to be given special importance or signif-

icance.6

As the BVI court of appeal case of Wheatley v Wheatley 7demonstrates, it is matter of judi-

cial discretion as to the weight, if any, to be attached to the respective statutory factors. In that

case, one of the several grounds of appeal was that the court took “wrong account”8of the age

of the parties, the duration of the marriage, the standard of living of the parties, the income

and earning capacity factors,9and failed to take account of the respondent’s conduct which the

appellant contended was “demonstrably relevant”10 However the court held that the lear ned

judge had taken into account all relevant considerations and had not therefore erred in award-

ing costs against the appellant in the court below.11

226 Commonwealth Caribbean Family Law

3 Anguilla – s.27, MPPA RSA c. M60; BVI – s29, MPPA 1995; Dominica and Grenada – s.25, MCA 1973,

England; St Lucia – s.25, Divorce Act Cap.4.03; SVG – s.34, MCA CAP 239; The Bahamas – s.29, MCA

CH. 125; Trinidad and Tobago – s.27, MPPA Chap.45:51.

4 VG 2003 CA 6.

5 Ibid at para 30.

6 Ibid.

7 VG 2008 CA 5.

8 Ibid at para 7.

9 Ibid. See paras 7and 8.

10 Ibid at para 10.

11 Ibid at para 12.