Divorcee loses property entitlement after 10-year delay in filing claim

A woman who waited nearly a decade after her separation before filing a claim for her share in the family home has lost her entitlement to an equal half of the property.

The woman was, instead, awarded a 35 per cent share of the property by Supreme Court judge Justice Andrea Martin-Swaby while her ex-husband was given a 65 per cent stake.

Martin-Swaby said, “Had these proceedings been initiated early, it is my firm view that the claimant [the ex-wife] would have been entitled to her 50 per cent share, notwithstanding the lack of monetary contribution.

She, however, explained that during the 10-year delay, the ex-husband was the only person managing and investing in the property. As a result, it would be unfair to award the ex-wife a 50 per cent share in the circumstances.

The claimant, Sophia Daley, who separated from her husband, Raymond Daley, in 2014 after nearly nine years of marriage, sought a 50 per cent interest in the jointly owned family home at 1B Hibiscus Drive in Kingston. The couple acquired the property at the start of their marriage in 2005 and lived there with their three children throughout the relationship.

However, Ms Daley did not file her claim to divide the matrimonial property until March 2024, nearly 10 years after separation and six years after the divorce was finalised.

In a written judgment published recently, Justice Martin-Swaby declared that the property was the family home and that the wife held both a legal and equitable interest.

However, she underscored that the lengthy delay in bringing the claim significantly affected what would be fair and just under the Property Rights of Spouses Act (PROSA), requiring a departure from the usual equal division of jointly owned matrimonial homes.

At the same time, the judge noted that a delay “should not automatically disqualify a spouse from benefiting from the equal share rule”.

“The delay in initiating proceedings may or may not affect the fairness of applying the equal share rule. It must be assessed on a case-by-case basis,” Martin-Swaby said. “In this case, the defendant continued to manage and invest in the property alone for approximately 10 years.”

According to Ms Daley, she was unaware of the divorce in 2018 and had focused her efforts on resolving custody matters involving the children. She also indicated that one child underwent surgery around 2020. These factors were advanced to explain the delay in bringing the claim.

NOT PERSUADED

However, the judge, while noting that she had “carefully considered all these factors” in assessing whether the equal share rule should still apply, said she was not persuaded that these factors should shift the pendulum back towards an equal share of the property.

The court heard that Mr Daley was the primary breadwinner, paying the deposit, mortgage, and all household expenses during and after the marriage. Further, he continued to service the mortgage, cover upkeep costs, and make improvements that increased the property’s value after Ms Daley left the home in 2014,

He invested approximately $500,000 in upgrades, including converting a garage into a bedroom, enhancing security, and carrying out regular maintenance.

While the court described these as modest improvements, it accepted that they contributed to the property’s increased value.

The ex-husband’s attorney, Raymond Samuels, argued that his client’s ex-wife was not entitled to a half share because Mr Daley covered all mortgage payments. The ex-wife, he said, made only “negligible and inconsequential” contributions towards the property and family expenses during the marriage.

UNFORTUNATE CONSEQUENCE

However, the judge noted: “In marriage, persons arrange their day-to-day lives in differing ways. The court cannot countenance a situation where wives or husbands are punished for failing to contribute to the family pot.”

“This may have the unfortunate consequence of forcing spouses to do accounting and auditing of individual income and expenditure to safeguard their interests should the marriage fail. This is not what the law intended to achieve,” Martin-Swaby added.

She further stressed that “non-monetary contribution need not be extraordinary” as marriage is about building a life together, not keeping financial accounts.

“Marriage is not about record keeping but more about persons seeking to embark on a life together. I do not believe that the defendant being the breadwinner and contributing entirely to the mortgage or the expenses associated with the property during cohabitation as man and wife disqualifies the claimant from a half-share interest in the property,” she explained.

The judge also rejected the husband’s argument that the home lost its status as the family home after Ms Daley vacated it in 2014, emphasising that the relevant consideration was how the property was used during the relationship, not after separation.

“The departure from the home ... does not raise an inference that the intention changed ... . The purpose of PROSA ... is examining the parties’ dealings with the property prior to the termination of cohabitation,” she said.

The judge ultimately found that the home was the family home as the couple had lived there exclusively for nine years during their marriage. She also took into consideration that the house was purchased with the intent of being used as the family home as Ms Daley and her ex-husband’s sister had used their National Housing Trust contribution towards purchasing the property though Mr Daley had covered the $12-million deposit by himself.

Alongside the 35 per cent stake to the ex-wife, the judge also ordered that the joint tenancy be severed and that Mr Daley be given the first option to purchase the claimant’s interest.

Attorney-at-law Marjorie Shaw, instructed by Brown and Shaw, represented Ms Daley.

tanesha.mundle@gleanerjm.com