~/
CONTRIBUTION
HOUSE DEBATE ON
BILL TO
ENACT PROPERTY (RIGHTS OF SPOUSES) BILL
"The law is not a shackle to enslave:
it is a Tool of Social EngineeringH
P. J. PATTERSON
PRIME MINISTER
17h February 2004
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BRIEF RE. PROPERTY (RIGHTS OF SPOUSES) BILL
The Bill entitled the Property (Rights of Spouses) Act is a landmark piece of
social legislation.
The Bill provides new rules for the division of property between husband and
wife and qualified unmarried cohabitants (common-law spouses) upon the
termination of marriage or cohabitation.
The new statutory rules will replace the existing rules of common law and
equity which now apply. They are intended to remedy the deficiencies of the present
law and bring greater certainty to the legal entitlement of spouses to property when
their relationship comes to an end.
BACKGROUND
Mr. Speaker, the presentation of this Bill marks the culmination of a rather
lengthy process. The provisions of the Bill are substantially based on the
recommendations of the Family Committee in their Report on Matrimonial Property
Law Reform, which was submitted in 1990.
That Committee was chaired by the late Hon. Justice Ira Rowe, former
President of the Court of Appeal, and its membership included representatives of the
Bench, the private and public Bar, Social Services and the Norman Manley Law
School.
We owe a great debt of gratitude to the late Chairman and members of the
Family Law Committee for the contribution they have made to the reform of this
important area of law which touch and concern the lives of so many in our society.
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Mr. Speaker, that the provisions of the Bill represent the outcome of
exhaustive consultations. This, in part, explains the length of time it has taken to
come to fruition.
The Committee, shortly after its appointment produced an Interim Report
which was published as a Green Paper.
This Interim Report made some tentative proposals for the reform of the law
relating to Divorce and other Matrimonial Causes, and the division of property
between spouses upon marriage breakdown. The objective was to "stimulate public
interest in the law on the subject and to test the desirability for reform".
The Committee tackled first the reform of the law relating to divorce and
matrimonial causes - its recommendations on this area were implemented by the
enactment of the Matrimonial Causes Act 1989.
The Committee then returned to the matter of matrimonial property with the
publication of a working paper which discussed the deficiencies of the present law
and the options for reform and solicited the views of the public on the various issues
raised. As indicated in the final Report, the responses took the form of discussions
at various fora and seminars and written submissions. The final Report represented
the position arrived at after consideration of all the issues and the feedback received.
The final Report itself was widely circulated and discussed, particularly
among women's groups who showed a particular interest in the subject matter.
Consequent upon these discussions, the then Minister (Hon. Carl Rattray) gave
further consideration to the recommendations and certain modifications were made.
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These modifications relate to the special treatment of the Family Home and the
extension of the application of the new rules to unmarried cohabitants ( common-law
spouses). More will be said about these two features of the Bill later.
The Bill was first tabled in October, 1999 and was referred for the
consideration of a Joint Select Committee of both Houses. Mr. Speaker I must
express my disappointment with the long time this aspect of the process has taken.
The Select Committee stage is a very important part of the process for Bills of this
nature. It affords an opportunity for public participation, for further consideration of
the provisions of the Bill and for refinements and adjustments to be made to the
provisions where these are deemed necessary. The significant amendments
recommended by the Joint Select Committee which examined this Bill attest to the
usefulness of this procedure.
However, if this process is to work effectively, the committee members must
treat the work of these committees seriously, so as to avoid undue delay to the
passage of legislation. I urge persons who are appointed to Select Committees to
exhibit a greater appreciation of the importance of the work of these committees by
their attendance at scheduled meetings and the sense or urgency with which the
Bills referred to them are dealt with.
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ROLE OF THE LAW AS A TOOL OF SOCIAL ENGINEERING
The link between law and policy is well established and has been long
recognized. One of the roles of the law is to support and implement social policy. In
no area is this more marked than in the area of family relations.
The family is the basic unit of society. It is therefore used as a starting
point/focal point for the formulation of social policy.
Our law, as you know, is a part of our colonial heritage and was founded on
principles of the common law.
English law was never conceived on the realities of the Jamaican society
and much of it was based on premises that we find unacceptable and even
repugnant, to the kind of society we seek to fashion. Nowhere was the gap between
the law and reality more evident than the area of family life and social relations. The
law regarded marriage as the basis for family life and was concerned only with
husband and wife and the offspring of their marriage.
But for the vast majority of persons in the society, informal unions were the
norm with the resultant high rate of births occurring outside of wedlock. A large
number of families therefore, fell outside the periphery of the law, and consequently
outside its protection and regulation.
The variance between the law and social reality posed a challenge for the
early social reformists and legislators.
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Although the focus in the early post emancipation years was on the
encouragement of marriage, the peculiar circumstances of the society compelled the
recognition that English laws could not be applied without variations. So e.g. the first
batch of laws introduced after Emancipation included a Marriage Act (The Dissenters
Marriage Act, 1840) which not only provided for the formation of marriages but also
included provisions for the conversion of informal unions to legal marriage and for
the legitimation of the children born to the parties prior to such formalization. These
early measures recognized the gap between the law and the realities of family life in
Jamaican society and more importantly the need to bridge the gap.
Mr. Speaker, as I stated earlier, the law has a role to play in implementing
social change/social transformation. It is a role to which I have made reference on
previous occasions (and for which I have been pilloried). The measures required
may change from time to time to take into account changing situations and
circumstances, but the law must have a catalytic role.
The law cannot remain static, but must be responsive to societal needs and
circumstances. A programme for progress and change must be accompanied by a
social legislation agenda.
And so Mr. Speaker, I wish to place this Bill in the context of a deliberate
social legislation agenda, upon which we embarked many years ago with legislation
which sought to bring the law more in line with the realities of our society.
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1. Family Relationships
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One of the objectives of this agenda was to bring within the coverage and
protection of the law all Jamaican family relationships. I refer, in particular, to
legislation enacted in the 1970s such as the Status of Children Act, 1976, which
removed the legal disabilities attached to birth out of wedlock.
■ the Judicature (Family Court) Act 1975 which provided for the establishment
of special courts to deal with family related matters;
■ the amendments to the Maintenance and Affiliation Acts in 1975 to remove
the limit on the sum which a Resident Magistrate may award for maintenance
of children and other family members.
On the subject of Maintenance, I should remind the members of this
Honourable House that the Bill now before us implements only one set of the
recommendations made by the Family Law Committee regarding the adjustment of
the financial position of spouses upon family breakdown. The Family Law
Committee recommended that in keeping with the equal rights approach taken with
regard to property, spouses should have mutual maintenance obligations with
respect to each other and their children.
This Bill addresses the property rights. Maintenance provisions will be the
subject of a separate Bill.
Recently there was a report in the newspaper concerning comments made by
a Resident Magistrate regarding the existence of different legislative provisions for
the maintenance of children depending on their birth in or out of wedlock, the
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suggestion being that this placed a limitation on the effectiveness of the Status of
Children Act.
It is a fact that there are now two separate Acts which provide for the
maintenance of children. The Affiliation Act provides specifically for the maintenance
of children born out of wedlock by their fathers. The Maintenance Act treats more
generally with the maintenance of children by their parents, step-parents and
grandparents.
As regards a man's support obligation, section 2 of that Act requires a man to
maintain "his own children" and also every child whether born in wedlock or not,
which his wife may have living at the time of her marriage to him, and also if he
cohabits with any woman, every child which such woman may have living at the time
of the commencement of such cohabitation.
Pursuant to the Status of Children Act, (S.3) the term "child" must now be
interpreted without reference to the marital status of the parents.
The Maintenance Act, therefore, contemplates children born out of wedlock,
and it ought to be possible for an application to be brought against a father for
maintenance of his child born out wedlock under that Act, if paternity is
acknowledged or has been established by one of the means provided in the Status
of Children Act. Having regard to the wider coverage of the Maintenance Act, the
Affiliation Act is now largely redundant.
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It is recognized that the provisions relating to the maintenance of children
need to be harmonized and that is one aspect of the proposed reform of the
maintenance laws.
The proposed new Maintenance Act will deal with maintenance in a
comprehensive way, and will repeal and replace existing legislation such as the
Affiliation Act and the Maintenance Act and the relevant provisions in the Matrimonial
Causes Act.
2. Women
Mr. Speaker, I would like to comment on another important aspect of the
social legislation agenda - that is legislation relating to the status of women. This is
yet another instance of the law being out of sync with social reality.
Generally speaking, the received law, i.e. English law, was reflective of a time past,
when a woman's role was viewed solely in the context of marriage and the family. In
short her domain was the home.
The man was regarded as the breadwinner, caretaker and protector of his
family. The law held him liable for the maintenance of his wife and children, thus the
common law stipulated the right of a wife to pledge her husband's credit for
necessaries. That accounted for the primacy of the man in law.
Indeed at common law a husband and wife were regarded as one person,
that person being the husband. It follows that the law did not accord to women the
same status as men. Women, especially married women, were not regarded as
having the same legal capacity as men. They did not enjoy the same rights, neither
were they regarded as having the same responsibilities.
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The role of women has undergone considerable change over the years. The
entry of women into the working world and the economic independence resulting
from this has rendered invalid the premises on which the law was based.
The change in the status of women has impacted on the functioning of the
family and on the institution of marriage itself. The traditional assumptions that a
woman's place is in the home and that the wife is the economic dependent spouse
no longer hold true. Marriage is no longer a determinant of a woman's status.
Today, marriage is properly regarded as a partnership of equals. The truth is the
law has not kept pace with social changes.
It is no coincidence, therefore, that the social legislation agenda also
addresses the status of women. The modern legislative measures recognize the
equal status of women and seek to facilitate their full participation in economic
production and development.
Mr. Speaker, I refer again to legislation passed in the 1970s - The
Employment (Equal Pay for Men and Women) Act, 1975 and the Maternity Leave
Act, 1979.
A more recent piece of legislation is the Citizenship (Constitutional
Amendment) (No.2) Act, 1993 which removed the gender-based differentials which
applied with respect to the capacity of a parent to pass on Jamaican citizenship to
his/her child foreign born, and the right of a person who marries a Jamaican citizen
to be registered as a Jamaican citizen by reason of the marriage.
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Mention should be made also to the proposed amendment to the provisions in
the constitution relating to discrimination (now S. 24). The corresponding provisions
in the new Charter of have been expanded to include "sex" as a ground on which
discrimination is prohibited.
Mr. Speaker, I should point out that in this instance, and in some of the other
instances referred to earlier, the provisions do not speak specifically to women but
are expressed in gender-neutral terms. However, they are beneficial to women in
their practical effect to the extent that the provisions are intended to meet
deficiencies in the law which in practice are felt mainly by women.
This is the case with the Bill which is now before us. It is no secret that
women suffer the most as a result of the uncertainty and inadequacy of the existing
law relating to property rights. For example, for the purpose of determining the
property rights of spouses, the law recognizes only contribution in money or money's
worth.
This emphasis on contribution which is calculated in financial terms puts at a
serious disadvantage a woman who has never worked outside the home, or a
woman whose working life was interrupted by the assumption of child-caring
responsibilities. The Bill specifically addresses this defect by providing an expansive
definition of contribution to take into account the value of the supportive and
nurturing roles usually played by women within the family relationship context.
The Bill also recognizes that very often the care and upbringing of minor
children is entrusted to the women - it makes specific reference to this as a factor
which the court is required to take into account in determining how property is to be
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divided, and also empowers the court to make property orders for the benefit of the
children. The new rules provided in the Bill, therefore, should greatly enhance the
economic security of women and children in the event of relationship breakdown.
THE UNIQUE FEATURES OF THE BILL
In developing the Bill, we have drawn on the experiences of other
jurisdictions, particularly countries with which we share a common law tradition.
However, the provisions of the Bill were fashioned with particular reference to our
social situation. I do not propose to deal with the provisions of the Bill in any detail,
as this has already been done. But there are two distinctive features of the Bill which
call for special comment.
The first is the treatment of the family home. Whereas the division of other
property is left to the discretion of the court, the spouses' entitlement to the family
home is fixed. Clause 6 of the Bill prescribes the entitlement of spouses in the family
home in the event of marriage breakdown or cessation of cohabitation, and in the
event of the death of one spouse. In both instances each spouse will be entitled to a
one half share in the home.
The Bill, in its original form, would entitle the surviving spouse to the entire
interest in the home by virtue of a deemed joint tenancy, but the Joint Select
Committee agreed with the view put forward by Commentators that this could be
unfair in some instances and recommended that it be reduced to a half share. The
principle applied is that a surviving spouse should be no worse off than a divorced
or separated spouse.
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If the family home was in fact held in joint tenancy, the statutory half share
would not apply, but the surviving spouse would be entitled to the entire interest in
accordance with the principle of survivorship.
Mr. Speaker, I believe we are breaking new ground in fixing the share of the
spouses in the family home. I am not aware that this approach has been taken in
any other jurisdiction. It was considered by the English Law Commission but it has
not yet been implemented there.
Other countries include the family home among community assets to be
equally divided, but we have restricted this approach to the family home, because in
the majority of cases the family home is the most valuable item of property owned by
the parties and is the property which is most often the subject of dispute. Jamaicans
place much importance on owning a home. We take great pride in home ownership
and the acquisition of a family home is one of the primary goals of couples. Perhaps
the only other matter to which we attach so much effort and importance is the
education of our children. The family home is, therefore, the property which most
represents the mutual effort and contribution of both spouses - spouses usually refer
to "our home".
And so it is only fair that where, unfortunately, the relationship breaks down
and the spouses decide to go their separate ways, each should be entitled to a half
share in the family home, except where, of course, such a division would be unjust
having regard to the circumstances of the particular case, and provision is made for
a departure from the equal share rule in this event by an application to the court.
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I mentioned earlier that the approach taken to the family home was one of the
modifications made to the recommendations of the Family Law Committee after
consultation with various groups. I should mention, also, that the provisions of the
Bill are actually in line with the preliminary proposals of the Committee in their
Interim Report, but in the final report the Committee opted for the adoption of a full
discretionary approach - that is, leaving the division of all property, including the
family home, to the discretion of the court, as a first step in the reform process. The
decision was taken to implement immediately the proposals regarding the family
home, for the reasons indicated earlier and having regard to the time that had
elapsed since the matter was first considered.
The other distinctive feature of the Bill is the application of the new rules to
common-law unions. It is an undeniable fact that the common-law union is a well
established social institution. Sociologists have long identified it as one of the basic
unions/family types in Jamaica and this is reflected in the census data over the
years. In fact, the common-law union is a characteristic feature of social life in
Jamaica and other parts of the Caribbean region.
Interestingly, it is now gaining currency in some of the more developed
societies, and they are devising measures to treat with it. In our part of the world it is
attributed to various factors in our historical past - slavery and the plantation lifestyle
that evolved. Be that as it may, it is a reality which the law cannot continue to ignore.
Any law which seeks to regulate family relations must take into account this reality if
it is to be effective.
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Now, let us be clear about this. The Bill does not place a common-law union
on the same footing - legally or morally- as a marriage.
The Bill treats as spouses a single man and a single woman who have lived
together as they were in law husband and wife for period of not less than five years
immediately preceding separation or initiation of proceedings. This is the same
formulation used in other family related legislation which recognize a common-law
spouse - the Intestates' Estates and Property Charges Act which sets out how the
property of a deceased person is to be divided among family members where there
is no will.
And the Inheritance (Provision for Family and Dependants) Act which entitles
certain dependants of a deceased person to apply to the court for maintenance
provisions out of his estate are two examples.
The policy is to recognize longstanding stable relationships between single
persons as giving rise to certain obligations entitlements. It is a fact that persons in
such a relationship build families together, work together and accumulate
possessions. When the relationship comes to an end, the parties undergo the same
kind of dislocation experienced by persons who are married. These consequences
flow from the nature of the relationship and not from its formality or lack thereof.
If the law is to be effective it must look to the social and economic
consequences of the relationship rather than the legal form.
It is important to note that the statutory rules regarding property division may
be overridden by agreements between spouses as to how they wish property to be
divided in the event of termination of their relationship.
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The Bill permits such an agreement, but stipulates certain conditions, compliance
with which is essential to the validity of such an agreement. These conditions are
designed to safeguard against undue influence, to ensure that the parties
understand the nature and intent of the agreement and that the agreement is
properly executed. The statutory rules, therefore, will operate as a default
mechanism.
Frankly, if spouses are able to settle their affairs in a fair and amicable way,
there will be no need for legal intervention. Such intervention is, however, necessary
to protect the interests of spouses and children in the event of dispute.
Mr. Speaker, the provisions of this Bill have far reaching implications for
family relationships in this country. I think they should promote a more careful and
thoughtful approach to the whole question of relationships. The certainty which they
bring to the property rights of spouses should create in spouses a greater sense of
security and reduce the bitterness, conflict and distress following upon relationship
breakdown. The greater predictability of outcome resulting from these new rules
should also assist or encourage parties to resolve property disputes without recourse
to the courts.
We do not claim that the Bill is perfect. But every effort was made to facilitate
consultation at every stage and to accommodate the suggestions for changes as far
as possible. The operation of the provisions will have to be reviewed over time and
amendments made where the experience suggests the need.
With the passage of this Bill we will have dealt with yet another item on the
social agenda. I am happy to note that the social legislation agenda has been
followed through by successive administrations - with the passing of legislation such
as the Matrimonial Causes Act, 1989, which abolished the old fault grounds of
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