Division Of Matrimonial Real Property: Some Aspects Of Law In The British Virgin Islands

Contents

TOC o “1-3” h z u HYPERLINK l “_Toc376766895” Abstract PAGEREF _Toc376766895 h 1

HYPERLINK l “_Toc376766896” Introduction PAGEREF _Toc376766896 h 2

HYPERLINK l “_Toc376766897” Background information PAGEREF _Toc376766897 h 2

HYPERLINK l “_Toc376766898” Research objectives PAGEREF _Toc376766898 h 2

HYPERLINK l “_Toc376766899” Delimitations PAGEREF _Toc376766899 h 3

HYPERLINK l “_Toc376766900” Data collection: PAGEREF _Toc376766900 h 5

HYPERLINK l “_Toc376766901” Point 1: The MARECON trust PAGEREF _Toc376766901 h 7

HYPERLINK l “_Toc376766902” Point 2: The jurisdiction of the court PAGEREF _Toc376766902 h 9

HYPERLINK l “_Toc376766903” Point 3: Defining “matrimonial real property”: PAGEREF _Toc376766903 h 10

HYPERLINK l “_Toc376766904” Why land PAGEREF _Toc376766904 h 10

HYPERLINK l “_Toc376766905” Point 4: Principles of division PAGEREF _Toc376766905 h 13

HYPERLINK l “_Toc376766906” Point 5: Reform PAGEREF _Toc376766906 h 14

AbstractIn the recent past, there has been growing evidence that there are some aspects of law in matrimonial real property. This is the reason behind this dissertation that the writer has decided to undertake. The dissertation begins with a brief definition of the term matrimonial real property its origin, its applicability in the legal cycles and recent developments. The second chapter is very broad and covers all the relevant literature available as far as matrimonial real property is concerned. The methodology section will cover in detail the methods that the researcher went on to conduct the research. This will include the approach, strategy and design he will use in coming up with the dissertation. This will be followed with critical analysis of the material and data obtained in the research in order to come up with tangible and viable findings. Finally, the writer will conclude the proposal by tabling summary of his findings and recommendations for BVI. It is hoped that if those recommendations will be implemented, it will go a long way in adding value to the operations, organization culture and jurisdiction capacities of courts in as far as matrimonial law is concerned.

IntroductionBackground informationWe live in a very fast changing world where everything around us keeps on changing on a daily basis. Talk of technology, medicine, business practices, law, education and even engineering all keep on changing. Therefore, it becomes inevitable that we must also be dynamic so as to meet the changing environment. This is especially important in such aspects like law which touch on our everyday lives. For a very long time the law, governing matrimonial land in the British Virgin Islands (BVI) has remained unchanged. This has made it to be totally out of touch and impervious with the situation on the ground. Consequently, this has posed many challenges to the judicial system because there are emerging issues that these laws have either failed to address totally or partially.

It is against this background that the writer of this dissertation has decided to explore some aspects of law in the British Virgin Islands that relate to Matrimonial law.

Research objectivesThe major research objective of this Project proposal is to explore some aspects of law in the British Virgin Islands that relate to Matrimonial law. Another supportive objective will be to determine some amendments that may be done to these laws so as to make them more relevant and applicable in current world. This will be the centre piece of this research proposal that all the other areas will be revolving around.

Research questions

The principal research question in this research dissertation is:

What are some aspects of the law that are applicable to the division of matrimonial real property within the British Virgin Islands?

DelimitationsIn every research that is being carried out, limitations are inevitable and this particular research is no exception. Limitations compromise the validity and quality of the research outcome and thus any researcher who wants to come up with a good report should try to minimize them as much as possible. However, it is good to note that some limitations can’t be avoided, we can only try and reduce their negative impacts on our research. The following are some of the limitations that the writer anticipates in this research:

Some respondents may give incomplete answers to the questionnaires

Difficulty in measuring some aspects of the research e.g. residents attitude to matrimonial real property law

Unreliability of secondary data sources

Limited resources e.g. time, funds, manpower etc

Literature Review

This discourse focuses on some aspects of the law applicable to the division of matrimonial real property within the Virgin Islands.

The division of matrimonial property is governed primarily by the Matrimonial Proceedings and Property Act. The passage of that Act was designed to establish workable guidelines for distributing and adjusting property rights of spouses, simplify the process of resolving ancillary relief claims and to produce certainty and predictability into this area of law. However, after twenty-five years since the enactment of that legislation, a review of the case law discloses that the evolution of this field of law has been plagued by inconsistencies and bedeviled by irreconcilable positions. The study highlights the deficiencies especially as they relate to two very significant aspects of matrimonial law: ascertaining what constitutes matrimonial real property and what principles should inform a determination as to whether and how matrimonial property should be divided.

Those inconsistencies and irreconcilable positions have created levels of uncertainty in the practice of family law that provoke the need to explore avenues by which a greater degree of predictability could be introduced into this area of the law. From the research made preparatory to the presentation of this document, it became evident that no study had previously been undertaken or published to address the problems faced by family law practitioners within the Territory. The selection of this topic therefore arises out of the patent absence of literature on family law in the British Virgin Islands and from the writer’s own experiences as a legal practitioner within the judicial system of the Territory. The researcher can attest to the fact that whilst the Matrimonial Proceedings and Property Act affords an aggrieved claimant access to the courts, the outcome of a claim became difficult to predict. The writer has witnessed the frustration of other practitioners who, in presenting their cases, held reasonable expectations of success, which were not realized. As a correlation to that, the author has observed the dismay and disbelief of clients who were advised by their counsel of the strong likelihood that their case would move in a particular direction only to realize the transpiration of a very different outcome. In essence, one saw a stark disconnect between what counsel had perceived the law to be and rules sculpted by the court based on the court’s interpretation and application of the law. It was therefore imperative that the incongruity between practitioners’ understanding of the law and the courts’ ruling of the law be investigated and that some consensus is developed as to what the law is – or – should be for that matter.

In order to bring a balanced and objective approach to the research, it was necessary for the writer to engage public participation in the process and to consider and analyze material from other sources.

Data collection:The material used to support the contents of this thesis was collected from a plethora of sources. For example, the study has relied heavily upon an assortment of printed textual material (garnered from journals and articles) and electronic sources such as the worldwide web. So as to locate the study within the geographical confines of the British Virgin Islands, the writer physically conducted an examination of approximately 100 cases which have been adjudicated by the High Court of the British Virgin Islands. Data pertinent to this study were extracted by employing a form, a specimen of which is attached as Appendix 1 to this paper. The inspection of the court’s files is not a privilege exercisable as of right. Inspection of the court’s file was made possible by permission granted by the Chief Justice of the Eastern Caribbean Supreme Court. Permission to inspect files for cases to which a researcher is not a party is necessary in light of the Civil Procedure Rules, 2000. In accordance with those Rules only parties to an action may inspect and take copies of certain documents such as the originating documents. Other documents, such as judgments and orders are more accessible since they fall within the purview of public domain and could be retrieved by manual searches or by extraction from the website of the Organization of Eastern Caribbean Courts. The assistance extended by the staff of the High Court Registry was most invaluable and far outweighed the challenges which the researcher encountered. The challenges which the writer experienced included, for instance, the apparent incompleteness of some files and the fact that some files could not be readily located. Respect was of course had to the sanctity of sealed files and to the fact that a number of the files were with the judges to enable them to fulfill their judicial obligations.

Given the localized nature of the study, it was the writer’s sense that public participation would add weight and credibility to the project being undertaken. It was therefore incumbent on the researcher to solicit the face-to-face interaction or telephone interviews with residents who were themselves parties to matrimonial property disputes or expected to become engaged in disputes of that nature. The writer was able to conduct interviews with twenty-five persons. The interviewer’s efforts to engage dialogue with about seven more residents were stymied by prospective participants’ expressions of fear, disaffection to the subject of matrimonial matters and reluctance to discuss what was regarded as a sensitive and personal topic. The interviews were supplemented by completion of a questionnaire which the interviewees were asked to complete. That questionnaire is presented as Appendix 2 to this dissertation.

Overall, this thesis seeks to articulate a conviction that the administration of modern matrimonial property law demands clarity and consistency on critical matters which affect this area of law.

The writer submits that the certainty and predictability in this sphere of law can be attained by advocating more purposeful interpretation of the relevant provisions of the Matrimonial Proceedings and Property Act. This can be done by creating a practical definition of ‘marital real property’, by carving out practical guidelines for the division of the matrimonial estate and by promoting a formula for the division of matrimonial real property. The components of the formula are encapsulated in a form of marital trust, which attracts the nomenclature “a MARECON trust.” The concept of the MARECON trust will be dealt with as the first point in this paper.

Point 1: The MARECON trustThe author seeks to introduce a model for dividing matrimonial real property, which it is hoped, will introduce certainty, fairness and predictability into the practice of matrimonial law. The author expresses the formula as “the Marecon Trust”. The aim of that formula is to set a paradigm by which to interpret and apply statutory, equitable and common law principles for the attainment of just outcomes in this expanding area of the law.

The fundaments of the MARECON trust constitute a small cluster of requirements. It first allows the parties the flexibility to enter into consensual arrangements for the distribution of their marital estate when their marriage has been fractured. As a second component, in the absence of an enforceable domestic arrangement, the claimant should establish that the property in question should fall within the definition of “matrimonial real property” as advanced in this author’s definition of “matrimonial real property”. Under that definition, it is proposed that intrusions should be made into personal or non-matrimonial property only to satisfy the demands of other financial relief obligations. Cardinally, on the third score, the party claiming a beneficial interest in property should be able to demonstrate that he or she made a recognizable and quantifiable contribution towards the acquisition, improvement or maintenance of the specific property to which he or she seeks an interest.

The expressions “recognizable” and “quantifiable” equate to a minimum contribution valued at one quarter of the appraised value of each specific piece of real property. The measurement of one quarter is suggested because it represents, in the writer’s view, a reasonable fraction which adequately attaches some economic worth on a party’s contribution. Contributions which fall below the one-quarter threshold should only be recognized if both parties consent to it. This proposition is anchored in the presumption that the contributor would have enjoyed some other benefit from that property such that it would not be conscionable for him or her to be vested with any entitlement to the property in question. Benefits in this context can assume the form of one party enjoying occupation privileges in the property without the obligation to pay rent, or one party deriving income from property for his or her personal use. In this formulation of the trust, it matters not whether the contribution was direct or that it was made at the time of purchase.

The contribution aspect of the trust essentially adopts the position expressed in the Australian case of Evans v Marmont, where the Court of Appeal decided that the power to alter property interests was limited by reference to contributions made by the applicant party and that these were the only matters to be considered in determining what is just and equitable.

Distributive justice based on property rights underlies the equitable principles of the MARECON trust. This type of trust seeks to uphold the maxims that equity will not aid a volunteer and that equity delights to do justice. The import of those maxims is encapsulated in dictum extracted from the Canadian case of Pettkus v Becker to the effect that a court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. Expressed another way for the convenience of this thesis: one party to a marriage should not unfairly forego that to which he or she is rightfully entitled. “If you do not own it, you cannot have it.”

In the writer’s view, any other platform for the distribution of matrimonial real property would be to encourage the unjust enrichment of one party to the detriment of the other. The introduction of the MARECON trust is cast against three important pillars upon which the law relating to the division of matrimonial property has been evolving. One factor is the role of the court as the arbiters of justice. Yet another fundamental task in the arena of matrimonial property justice is to carve out a workable definition of matrimonial real property. A brief overview of the following points sets the platform upon which this research is to proceed.

Point 2: The jurisdiction of the courtIt is commonly accepted that the court is vested with the ultimate power to process matrimonial property disputes. The court derives its jurisdiction primarily from the Constitution, from the Eastern Caribbean Supreme Court and, more specifically, from the Matrimonial Proceedings and Property Act and the Regulations promulgated there under. Chapter two of this thesis (2) proposes to discuss the court’s exercise of its role in resolving matrimonial property dispute, including its employment of alternative forms of dispute resolution.

Point 3: Defining “matrimonial real property”:It is not every interest in land owned by the parties that qualifies as matrimonial real property. Some boundaries must be set as to ascertain what properties should or should not fall within the corpus of the marital estate. Chapter three (3) is designed to identify differing processes by which spouses may acquire land or an interest in land discusses some arguments, which have been raised throughout the landscape of BVI matrimonial property law.

Why landIt is readily accepted that the marital estate may comprise property other than land or interests in land. As five percent of the cases reviewed demonstrates parties have made claims for interests in other forms of property. For example, [ % ] cases involved claims for the transfer of motor vehicles [ list case], four dealt with bank accounts [ list case], two concerned sought division of pension entitlements [Lewis v Lewis] and one case dealt, inter alia with rights to a yacht which was in fact used as the ‘matrimonial home’.[Stonich] With the exception of pension entitlements the court seems to have employed basically the same general principles as those employed for the division of matrimonial property. The question, which then arises, is “why land?”

The response to that enquiry can be gleaned by reference to the one hundred case files that the researcher inspected and from the information collected on the twenty five questionnaire responses. In eighty five per cent of the cases, land was shown as the dominant type of property held by the parties and in respect of which a claim was made. The questionnaire responses illustrated that land was the main type of property held by the eighty per cent of the twenty-five persons who completed the circulated form. Overall, in 83 per cent of the cases, the only property, which was the subject of an ancillary relief claim, was the matrimonial home.

That land is the most common form of marital property is representative of what obtains in the broader social context. The desire to secure and preserve land has its foundations in the history of the peoples of the Territory. It is reflective of the post-slavery era where all the citizenry had was land for cultivation and their sustainability. Historically, much of the land was given to slaves in the post-abolition epoch. Jenkins offers an example by which Samuel and Mary Nottingham manumitted all their slaves and gave them plantations in Long Look and Fat Hogs Bay (both sited on the mainland of Tortola) as a home to be enjoyed by them in perpetuity as tenants in common. This land was preserved by the ex-slaves for many years in the nature of a title deed for their holdings. Legislature has in fact been enacted to preserve and protect the rights of generations of slaves to that land. The Long Look Lands Commission and Titles Act was enacted to specifically preserve this legacy and to regulate the distribution of the Long Look lands to successive generations of slaves. Another example of land ownership in the post-abolition era relates to land in the Kingston, Tortola area.

Pickering records that “in 1818 an Act was approved granting free blacks and free colored’s the same rights as the whites in matters concerning real estate and property.” Pickering observes further, “in 1831 the Government gave grants of land at Kingston to a number of Africans. On this site they created a settlement assisted in a supervisory manner by Methodist Missionaries and the Collector of Customs. By August of that same year, 297 Africans had already taken up residence there … Many Africans had dismantled their previous homes and reconstructed them on the new site. Each plot of land was protected by a form of deed, which was unlike the conventional deed of ownership, since total rights to the property were reserved for the Crown only. The area became known as “the African Location” and was given a most attractive appearance, enough to meet the approval of certain important visitors.” The land is therefore owned primarily by ‘locals’ from whom most of the present day owners inherited the land.

The desire for land ownership could also conceivably be influenced by the scarcity of land within the jurisdiction. Given its limitations of space on the major inhabited islands of Tortola, Virgin Gorda, Anegada and Jost Van Dyke and the rugged terrain (except on the flat coral bed of Anegada) the Territory is becoming increasing unable to accommodate its burgeoning population of just over 27,000. In the premises, it is not difficult to appreciate why land has proven to be the biggest common denominator in matrimonial property disputes. Therefore, with a view to making the study socially relevant, the writer found it necessary to focus on the most popular type of property dealt with in the case law: Land.

Point 4: Principles of divisionThe principles of division of matrimonial property are culled from statute (and in particular the BVI Matrimonial Proceedings and Property Act and from case law which deals with statutes enacted in Australia, Canada, the United Kingdom and other Commonwealth jurisdiction). The concept of fairness as initiated by their Lordships in the landmark case of White v White, and from equitable principles of the resulting and constructive trust.

It is recognized that although legislation confers on the court wide discretionary powers to adjudicate on matrimonial real property issues, stable guidelines for exercising that discretion have not been effectively identified or communicated. Effective identification and publication of guidelines are critical to the promotion of uniformity, consistency and predictability within the judicial framework and “will assist parties, their advisers and mediators in resolving disputes as quickly and inexpensively as possible.”

Chapter four (4) then discusses an array of well-traversed legal principles and rules which the court invokes when adjudicating on matrimonial real property disputes. The chapter canvasses in one part the statutory factors as outlined in the Matrimonial Proceedings and Property Act and, in the other party, a raft of common law and equitable principles which the courts have relied upon in determining who or what should be successfully entitled to interests in matrimonial land. From the legislative standpoint, the treatise seeks to argue that the factors embedded in section 26 of the Matrimonial Proceedings and Property Act do little to promote the interests of parties in the distribution of matrimonial land.

This paper will reveal that the application of equitable principles have been inconsistent at best and will attempt to recommend ways in which the process of division can be enhanced.

Point 5: ReformAn exposition of the foregoing points will, reveal areas in which reform might be necessary in order to achieve justice and fairness as the overarching goals in adjudicating matrimonial real property cases.

A discourse in any branch of the law presents useful opportunities to identify perceived flaws and lacunae in the existing legal framework and to venture recommendations for change. Chapter five (5) advances avenues for reform of the law which impact upon the adjudicative role of the court as it relates to matrimonial real property matters. It is acknowledged that reform has never been an easy undertaking. This is the problem the social scientist faces. “He does not find the social work structure less, but faces what society has pre-selected and pre-interpreted by means of common sense constructs of reality and daily life. The task of the social scientist is thus to transcend the common-sense world, to discern its working, patterns and relationships between actors. He must make sense of it. Further, he elicits meanings for they are often not clear. They may be implicit, disguised or even confused. In addition, far from ignoring what society has chosen to trivialize, he must concentrate on it.” By this process of social engineering, one can advocate a sifting of common practices to arrive at a set of rules, which the populace can identify with and obey.

In concluding this introductory portion of this thesis, it is hoped than when all of the points have been fully explored, one will come to the inescapable conclusion that the principles currently affecting the division matrimonial real property are in a state of flux and that the formulation of a marital trust will prove an effective antidote to the lack of consistency, uniformity and predictability in the pursuit of fairness and justice for matrimonial litigants.