Property is defined by Black’s Law Dictionary as “The ownership of a thing, is the right of one or more persons to possess and use it to the exclusion of others.” Property, therefore, is a thing or things owned by someone, which can include rights and intangible things. Section 2 of the Civil Law of Guyana Act, Chapter 6:01, defines movable and immovable property as follows:
From and after the 1st January 1917, hereinafter in this Act
referred to as “the date aforesaid,” save as provided by this or any other
Act, unless the context otherwise determines, wherever the words
“movable property” are used in an Act, or in any written law, or in a
document, they shall ordinarily be deemed to mean and include personal
property, inclusive of choses in action but exclusive of chattels real, as
understood by the common law of England, and vice versa, and
wherever the words “immovable property” are so used they shall
ordinarily, be deemed to mean and include both real property and
“chattels real” as understood by the common law of England, and vice
versa.
Therefore, property refers to movable and immovable property. Moveable property can be picked up and carried away, such as microwaves and lamps. In contrast, immovable property cannot be picked up and carried away, such as plots of land, whether held by transport or title and include chattels real. Therefore, all leases in Guyana are categorised as immovable.
This series of articles styled ‘Property Rights in Guyana and You will consider several critical issues which can arise concerning property rights in Guyana and will provide some quick facts on these matters. Please note that these articles cannot substitute the necessity to consult with legal counsel and can only provide the basic facts on these important matters.
We begin with the family, matrimonial property, and the issues which can arise when married couples wish to separate their properties.
The Family and Division of Property
- What does ‘division of property’ mean?
The phrase ‘division of property’ usually refers to the separation of property between a husband and a wife.
- Who is a ‘husband’ and who is a ‘wife’?
You may wish to simply state that ‘husband’ and ‘wife’ are male and female persons legally married to each other. This is correct, but the law also considers common law unions/marriage.
Black’s Law Dictionary defines ‘common law marriage’ as “a marriage that takes legal effect, without license or ceremony, when two people capable of marrying live together as husband and wife”. In other words, a common law marriage is when a man and woman, both of whom are single, live together as man and wife. In Guyana, they must have lived together as man and wife for at least five years to be considered husband and wife.
Therefore, the laws that apply to the division of property apply to legally married spouses and common law spouses according to Section 15(10) of the Married Persons (Property) Act Chapter 45:04.
It is to be noted that the definition of marriage and common law union in Guyana refers to a ‘man’ and a ‘woman’. As such, Guyana still relies on the common law definition of marriage enunciated in Hyde v Hyde and Woodmansee [1866], that marriage is “the voluntary union for life of one man and one woman to the exclusion of all others”.
In relation to the definition of marriage, the court has held that sex is determined at birth, and the sex of a person cannot be altered later in life. See the English case of Corbett v Corbett [1970], where the court ruled that the Respondent was not a ‘woman’ and could not be deemed a wife. Marriage being essentially a relationship between man and woman, the validity of the marriage depended on whether the respondent was or was not a woman and, the respondent being a biological male from birth, the so-called marriage was void. The court held that the sex of an individual is determined at birth at the latest and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical intervention.”
While by way of statutory intervention, several countries now recognise same-sex unions for these purposes, Guyana has maintained the common-law definition of marriage.
In addition, both parties must be single to be captured within the statutory definition of a common-law union.
- What Property Does the Married Persons Property Act Governs?
Section 4(1) of the Married Persons (Property) Act Chapter 45:04 states that:
“The respective matrimonial rights of every husband and wife, domiciled or resident in Guyana and married after the commencement of this Act, in, to, or in respect of movable property, during the subsistence of the marriage and of that domicile or residence, shall be governed by this Act.”
Section 4(2) states:
“The respective matrimonial rights of every
husband and wife married after the commencement of this
Act, in, to, or in respect of any immovable property situated in
Guyana, during the marriage, shall be governed by this Act.”
Therefore, the act governs property acquired during the marriage situated within the jurisdiction of Guyana. Noteworthy in Hancock v Hancock BZ 2009 SC 11, matrimonial property is defined as property acquired during the marriage or during any period of cohabitation before marriage, as the case may be.
Section 5 of the act clarifies that property acquired prior to the marriage by each party will not be considered matrimonial property. The section states:
“There shall be no community of goods between husband and wife married after the commencement of this Act as a consequence of marriage, either in respect of movable or immovable property.”
- How is Property Divided?
Section 15(9) of the Married Persons (Property) Act. Chapter 45:04 provides that where the husband and wife have been living together for less than five years, their property is to be divided in accordance with the judge’s discretion. The judge must consider all of the circumstances, including each person’s contribution, the welfare of the family, and, notably, homemaking and family care provided by each spouse.
The Married Persons (Property) Act Chapter 45:04, at Section 15(9), also states that where the spouses have been living together for five years or more, however, the entitlement to property depends on whether both spouses are working or whether only one is working. Where both parties are working, they are both equally entitled to half (½) of the property each. Where one party works and the other does not, however, the spouse that does not work is entitled to a one-third (⅓) share in the property while the working spouse is entitled to the remaining two-thirds (⅔) share.
The court’s approach to interpreting Section 15 was highlighted in the Guyanese case of Seweda v Seweda Civil Appeal 39 of 2012. In this case, the court stated that there’s no need to assess what every penny that came into a marriage was spent on and by whom. The learned Justice of Appeal Singh explained the rationale behind the specified share approach stating,
“It is a pragmatic recognition that both spouses contribute to the operation of the family unit, and the value of that contribution, where the parties have been living together for at least five years, has been assessed by the legislators to be one-third or one-half.”
Justice of Appeal Singh further posited that it is trite law that
“a specific contribution does not have to be made to a specific property for a spouse to be entitled to a share in and to that property. As long as the property is matrimonial property, the entitlement is statutory.”
Interestingly, however, the modern approach has been to expand the definition of work to consider work in the home as constituting work for the purposes of the act. Hence 2013, in the Guyanese case of Fraser v Fraser HCA No. 723 of 2013, the court adopted the non-traditional view of work.
The husband and wife were married in 1983 and separated in 2012. From the beginning of the marriage, by agreement, the husband worked, and the wife was a homemaker who cared for her husband, home, and their four children. Justice George, when considering the thirty years of homemaking that the wife had rendered to the entire family, taking into consideration the hardships and necessity of her housework to the wellbeing of her family, gave the wife a share of more than a one-third (⅓) share. She was, instead, granted a one-half (½) share in the matrimonial assets. In this case, Justice George equated her contributions as ‘work’ though she did not earn a wage like her husband.
Therefore, although prima facie, in accordance with the Married Persons (Property) Act Chapter 45:04, the party may be entitled to a certain share, that share in the property may be altered due to the peculiar circumstances of the case.
