Love, law, and land: Navigating property claims in separation and divorce
Property and relationships are often intertwined, creating both shared dreams and complex legal realities. When a relationship ends, particularly in the context of marriage or cohabitation, understanding property rights becomes crucial.
In Jamaica, the Property (Rights of Spouses) Act (PROSA) provides a framework for dividing property during separation or divorce, while the Limitation of Actions Act (the LAA) sets critical time limits on property claims. This article focuses on how timing, possession, and evidence under PROSA and the LAA play pivotal roles in property claims during separation and divorce.
The Legal Framework for Property Division
One of the most notable provisions of PROSA is the presumed 50/50 split of the family home. However, the Act outlines several conditions for a property to be classified as a “family home”, including requirements around ownership, use, and purpose.
For instance, the family home must:
• be wholly owned by either or both spouses;
• be used habitually or from time to time by the spouses as the only or principal family residence; and
• not be a gift to one spouse by a donor who intended that spouse alone to benefit.
Although each case will turn on its own facts, the legal requirements readily exclude several properties from being the family home. Here are examples of houses that cannot qualify:
• A house occupied by a married couple but owned by someone else;
• A house occupied by a married couple that was gifted to one spouse by their parent, who intended only for that spouse to benefit;
• A home owned by either or both spouses, but which is not their main residence.
Once a property qualifies as the family home, the ‘equal-share rule’ typically applies, meaning it is divided equally between the spouses. However, the court can vary this rule in certain circumstances, such as if the property was inherited, owned by one party before the marriage or beginning of cohabitation, or the relationship was of short duration.
The Role of Timing and Possession in Property Claims
One of the key legal principles under PROSA is that property claims must be brought within a certain time frame. Section 13(2) of PROSA makes it clear that where a spouse applies to this court for division of property on the grant of a decree of dissolution of marriage, such application shall be made within 12 months of that dissolution of marriage, or such longer period as the court may allow after hearing the applicant.
In addition to PROSA, the LAA imposes a 12-year time limit for claims related to the recovery of land or possession. After this period, a claim for recovery will typically be barred. These provisions apply to properties which may be the subject of claims in PROSA.
In a recent 2025 decision, the failure to meet the definition of “spouse” had a significant impact on the court’s analysis. The claimant filed a claim for a declaration that he is entitled to 50 per cent of the ‘family home’ after being separated from the defendant, but the court was first required to determine whether they were legally spouses under PROSA.
The claimant had admitted to having an affair during their relationship. This, alongside the absence of sufficient evidence, raised doubts about whether the parties were living in a legally recognised spousal relationship.
The court noted that there was only evidence that the parties lived together from 1994 to 2002, that they had one child together, and that they purchased property together. The evidence presented did not disclose a sufficient basis to find that the parties were living together as if they were husband and wife because there was inadequate evidence that both parties were ‘single’ during cohabitation. This finding was critical and as a result, the property in question could not be the family home.
Adverse Possession and the Impact on Property Claims
The defendant, who had remained in the property and made repairs, paid the mortgage, and managed the property for many years after the claimant left, argued that she had adversely dispossessed him of any interest he may have had in the property. Under the LAA, this possession, coupled with the passage of time (18 years in this case), led the court to a finding that the claimant’s rights, even as a joint owner of the premises, had been extinguished.
The court found that the defendant’s actions showed an intention to treat the property as her own.
The Importance of Evidence in Property Claims
In property disputes, the evidence, particularly regarding the status of the relationship and contributions to the property, is crucial. In this case, the court considered the claimant’s lack of involvement in maintaining the property after he left. While he had helped purchase the property, his absence, failure to contribute financially or physically to the property since leaving and failure to adduce evidence to satisfy the definition of ‘spouse’ weakened his case.
The Interplay of Spouse Status, Timing, and Evidence
In the referenced case, the inability to prove that both parties were “single” meant that the court could not recognise their relationship under PROSA, and consequently, the claim to the family home failed. This emphasises the importance of having clear evidence of spousal status before proceeding with PROSA claims.
Furthermore, timing and exclusive possession are critical factors in property disputes. The LAA and PROSA reinforce that waiting too long to assert property rights can lead to forfeiture.
In the end, the case serves as a reminder that property rights hinge not just on legal definitions, but on timely action, solid evidence, and the ongoing contributions to a shared home.
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Joshua Page is an associate at Myers, Fletcher and Gordon and a member of the firm’s Litigation Department. He may be contacted at Joshua.Page@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
