Is your love as deep as your pocket?
Part I
Recent headlines have been highlighting issues arising out of romantic relationships especially ones where the couple is married, or cohabiting. The main issue has concerned the sharing of assets. The main asset at the centre of the dispute is usually their home.
I was listening to a radio show and a wife called in seeking guidance. She is a newlywed and her husband refuses to live with her. Why? Her husband wants his name to be added to the title to her property where she lives. The wife is upfront, and says she cannot add her husband’s name to the title because “she doesn’t know him like that.” The husband is maintaining his position, and the wife wants to know if she is wrong. Who do you think is wrong?
Another story in the media which gained a lot of attention concerned a husband who insisted that he is entitled to a share in the home that his wife owned before they were married but, which he claims they lived together in as husband and wife after they got married. Ultimately, our Court of Appeal decided that the husband is not entitled to a share in the property. The comments made online were varied, and ranged from its better to not get married and “fatten fowl for mongoose”, to if the shoe were on the other foot the woman would have received half.
Fortunately, our laws are not biased in favour of either the male, or female spouse. There have been situations where women have not been awarded half of the property. It’s important to bear mind that each case is decided based on its specific facts, and news headlines and articles do not always give the full details needed to facilitate a proper assessment.
Based on the comments online, the second scenario seems to have been considered simple. While our laws regarding the division of property are clear, the circumstances the Court must analyse are often more complicated than a headline suggests.
The case in the second scenario is a good example of the effort our Courts put into delivering a reasonable and just decision. The division of property is a very common issue our Courts resolve but the nature of this specific case resulted in a ninety pages long judgment, detailing the assessment of the relationship. Ninety pages is not common for this type of judgment. Below we will look at some of the things considered.
What is a family home?
The ‘family home’ has a specific meaning in law, and was central to the case. The definition is lengthy so I will summarize key parts of it. Basically, the family home, is a house owned by one or both spouses, that is used habitually or from time to time as their only, or main family residence. The property was found to be the family home and formed the basis on which the husband could seek to rely on our law’s 50/50 equal share of the family home rule.
What is the 50/50 equal share of the family home rule?
This is a default position in our law which states that in certain situations such as divorce, or the end of cohabitation, each spouse is entitled to 50% of the family home. It is a ‘default position’ because it can be challenged. Either spouse can request more than the 50%. In the second scenario, the husband believed he was entitled to get 50% of the family home but the wife disagreed and believed the husband should not get any at all.
Challenging the 50/50 equal share rule
One of the key principles underlying the 50/50 equal share rule is “the fact that marriage is a partnership in which the parties commit themselves to sharing their lives on a basis of mutual trust in the expectation that their relationship will endure.” With that principle in mind, the Court takes challenges to the equal share rule seriously.
Our laws are practical and provide bases on which a spouse can challenge the 50/50 equal share rule. In another article I will explore those bases and how they were assessed in the second scenario.
Until next time, stay safe.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.