- The Property (Rights of Spouses) Act gives both spouses an equal share in the family home regardless of whose name the title is in
- Common-law spouses who have cohabited for five or more years are entitled to the same PROSA rights as married spouses
- A spouse who sells or mortgages the family home without the other spouse’s consent may have committed a breach of PROSA
- Third-party buyers of a family home may take it subject to an undisclosed spouse’s PROSA claim in some circumstances
- Spouses who have contributed to the purchase or improvement of property in the other spouse’s name should register a caveat immediately upon relationship breakdown
The Property (Rights of Spouses) Act (PROSA) established a statutory framework for the division of matrimonial property in Jamaica upon the breakdown of a marriage or qualifying common-law union. Under PROSA, both spouses are entitled to an equal share of the family home regardless of which spouse holds the registered title, and regardless of the financial contributions made by each spouse to the acquisition of the property. The family home is defined as the dwelling in which the parties ordinarily resided together, and the PROSA entitlement applies to it from the moment the qualifying relationship is established, not merely upon separation. This means that a spouse who is the sole registered proprietor of the family home does not have the unfettered right to sell or mortgage it without the knowledge or consent of the other spouse, and a transaction purported to be carried out without disclosing the other spouse’s interest may be voidable or subject to a court order restoring the position.
Concealment of Spousal Interests and the Rights of Buyers
In the context of property transactions, PROSA creates a specific risk for buyers who purchase the family home from a vendor who conceals the existence of a spouse with an interest in the property. A buyer who purchases in good faith and without notice of the other spouse’s interest may be protected under the registered titles legislation, but the position is not straightforward where the spouse was in occupation and the buyer should have made enquiries about the occupation status of the property. Vendors who deliberately conceal a spouse’s PROSA interest in order to complete a sale expose themselves to civil liability and, in some circumstances, criminal proceedings for fraud. The non-selling spouse who discovers that the family home has been sold without their knowledge or consent should immediately seek an injunction to restrain any further dealings and instruct an attorney to assess whether the transaction can be set aside. Prompt action is essential because delay may allow the property to be transferred to a third party who is genuinely without notice.
Protecting Spousal Property Rights
A spouse whose interest in matrimonial property is not reflected in the registered title should protect that interest by lodging a caveat at the National Land Agency as soon as a relationship breakdown occurs or is anticipated. A caveat placed by a spouse claiming a PROSA interest in the family home will prevent any transfer or mortgage from being registered without prior notice to the caveating spouse, giving them the opportunity to assert their rights before the property changes hands. Common-law partners who have cohabited for five or more years and have contributed to or share the family home should not wait for a formal separation to take this step: the legal right exists from the moment the qualifying period is established, and early protection is far more effective than seeking to reverse a completed transaction after the fact. Legal advice on the precise scope of PROSA rights and the applicable procedure is available from attorneys on the GLC’s public register at generallegalcouncil.org.
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