So, you have made the life-changing decision to walk down the aisle and commit to a life with your significant other. Does this mean that what’s mine is yours and what’s yours is mine? No, not necessarily.
Assuming your principal place of residence is St. Lucia, property you come into the marriage with remains solely yours. Unless of course, you deal with it in such a way that your spouse acquires an interest. But property you acquire together during your marriage belong to both of you.
Under St. Lucia law, therefore, there are two types of property of persons married in community: (i) separate property or (ii) community property. The category in which the property falls depends on when it was acquired and how it was acquired.
In this article we explain these two types of property. We briefly touch on the importance of the distinction, and, on whether parties can avoid being subject to community property.
Separate Property
Separate property is property owned by one spouse only. It comprises all property that is owned by you at the date of your marriage. It also includes certain property which is acquired by you after marriage. A few examples are as follows:
- Income, earnings, investments. Where you are employed, or self-employed, the income and earnings which are derived from your labour belong only to you. Similarly, any receipts from investments or life insurance policies in your name are solely yours.
- Inheritance, donations, gifts. Property which you inherit, or which is donated/gifted to you belongs only to you.
- Money in a bank account. Any money in a bank account which is in your name only, is presumed to belong to you alone. As this is only a presumption, it can be rebutted.
- Property in your name. If you purchase any property in your name with your income and earnings, the property and the proceeds of sale of the property belong only to you.
Community Property
Community property is property jointly owned by both spouses. It comprises all property that is acquired during the marriage which is not separate property. However, even where property is purchased as separate property, your spouse can claim an interest if he or she has contributed to the purchase or, perhaps, the upkeep of the property.
Why is the distinction important?
The distinction between community and separate property is relevant for many purposes. To name a few:
- Transactions – you must jointly deal with community property otherwise transactions may be set aside;
- Inheritance law – on your spouse’s death you may opt to claim your share in community property or abandon it and claim a share in all your deceased spouse’s property (both separate property and community property);
- Divorce proceedings – a court may order one party to forfeit his/her interest in community property or may direct the sale of separate property where a spouse has made substantial contribution to the improvement or preservation of that property.
Contracting Out
The parties to a marriage can stipulate that they do not intend to be married in community, that is, to subject themselves to the legal concept of community property. In this case, all property acquired during marriage will be separate property.
Generally, this stipulation must be made before the marriage is solemnized. However, where the marriage took place outside St. Lucia and the husband’s principal place of residence was St. Lucia at that time, the parties may declare that they exclude the concept of community property. This must be done within 6 months from the husband’s return to St. Lucia.
Take away
It is not the case that everything which comes to be owned during a marriage belongs to both spouses. What’s mine may be yours and vice versa as in the case of community property, but what’s mine may be solely mine as in the case of separate property. The distinction between community and separate property is significant in relation to inheritance, divorce and transactions.
Prepared by Sardia Cenac Prospere, Partner and Nina Roheman, former Associate.
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at info@fdt.law.