Kohlrautz v et Al

• Jurisdiction: Bahamas
• Judge: Moore, J.
• Judgment Date: 20 February 2003
• Court: Supreme Court (Bahamas)
• Docket Number: FP/89 of 1997
• Date: 20 February 2003

Supreme Court

Moore, J.

FP/89 of 1997

Kohlrautz

and

et al

Appearances:

Mr. Philip Davis and Mr. Ian Winder for the petitioner.

Mr. Sidney Collie and Ms Cassietta McIntosh for the respondent.

Mr. Robert Adams for the Interveners.

Family law - Matrimonial property division — Divorce — Respondent wife instituting claims against petitioner in various countries — Whether period of cohabitation before marriage should be treated same as after — Stronger claim for period after marriage — Conduct of parties to be taken into account to decide whether each party to the marriage properly discharged its obligations and responsibilities to the other — Petitioner held entitled to 50 percent interest in the matrimonial home — Respondent's claims for ancillary relief refused until respondent furnished the Court with a full and proper account of the assets of the petitioner then in control of the the receiver appointed in an action brought in Texas — Declaration that petitioner did not possess or control named companies — Respondent to pay the costs of the petitioner and interveners.

Moore, J.

Background

1 The background to the instant application for ancillary relief was encapsulated in a previous ruling of this Court which reads as follows:

• “1. Franz Wilhelm Kohlrautz is an avuncular sexagenarian, who is of German nationality, but who now resides in the Bahamian city of Freeport.

• 2. In happier days, he took as his bride the respondent, who was then a Canadian citizen, in ceremonies held on 4 February, 1981, in Europe, in the Grand Duchy of Luxembourg. The couple cohabited in that fair country until late in 1985, when they forsook the wintry climes of Europe for the balmy ambiance of Freeport, where the applicant purchased a matrimonial home in 1987. So agreeable were the salubrious Bahamian islands, that the spouses obtained permanent residency here in August of 1990.

• 3. Alas, however, discord was to enter into their Eden. The marriage broke down with the applicant husband complaining that the wife had treated him with cruelty and had deserted him. It is significant to note at this stage that the petitioner did not allege adultery as a ground for divorce. The respondent apparently found the State of Texas in the United States more congenial, and it would seem that on 1st December, 1997, she succeeded in obtaining what was described as a final decree of divorce from the Bexar County Court by default.

• 4. That decree, the Texan decree, was the precursor to a plethora of actions and proceedings brought against Mr. Kohlrautz in various parts of the world in pursuit of claims by his erstwhile wife, as she plainly regarded herself, for various forms of relief arising out of the marital estate. The applicant drew special attention to an ex parte order which purported to appoint a certain Mr. Christopher Webber as receiver of what was claimed to be the marital estate of the parties, 50 per cent of which had been awarded to the respondent by the Texas Court.

• 5. Mr. Kohlrautz described the Texas receivership as a sham. He bemoaned what he saw as the malevolent pursuit of himself and his assets by the respondent acting through her receiver in Courts in various parts of the world. He considers that he is being harried and harassed and hounded and vexed by a multiplicity of suits in various jurisdictions by Mr. Christopher Webber, whose actions he likens to those of the relentless Inspector Javert of Victor Hugho's famous novel, Les Misarabelles, which was set in pre-revolutionary France.

• 6. In support of his contention that he, together with his associates and entities related to him, are being systematically targeted with a view of inflicting maximum financial damage upon him and his interests, the applicant enumerates in his affidavit no less than ten hostile judicial processes which have been launched against him by the respondent in The Bahamas, in the State of Texas, and in several European countries. He is particularly galled by this clutch of what he sees as unnecessary litigation, since all of the foreign actions which he listed, save for those that are still subsisting and the recent judgment from the Swiss Court, have been resolved in his favour.

• 7. That fact, coupled with the fact that Alfred J, of The Bahamas Supreme Court, dismissed the respondent's action CL No. 53 of 1999 as being frivolous, vexatious, an abuse of the Court, leads Mr. Kohlrautz to conclude that the profusion of proceedings launched against him by his former wife in several continents have not been initiated in good faith, and have been unleashed upon him with the sole intent of ruining him financially, and of further impairing his already fragile health.

• 8. What is more, complains Mr. Kohlrautz, the respondent has failed to pay costs awarded against her in Liechtenstein and Basal, Switzerland. Even in this jurisdiction in The Bahamas, she has refused to pay costs awarded against her in Appeal No. 2/10/1999. Costs were also awarded against her and against Mr. Christopher Webber in Bahamian action CL/53 of 1999, which have also not been paid”.

2 By an amended summons, the applicant, who is a quarter of a century the chronological senior of the respondent, sought the following orders:

• “1. A declaration that the petitioner is entitled to a one half interest in the matrimonial home.

• 2. That the respondent be made to transfer her interest in the matrimonial home to the petitioner.

• 3. That no financial provision orders be made. And in the event the Court is minded to make such an order, no such order be made until such full and proper accounting is made in respect of assets which were or are in the possession and control of the respondent and Christopher Webber.

• 4. A declaration that the petitioner does not own the shares or assets of various corporate entities.

• 5. A declaration that Explora Invest Akiengeselschaft and Oilfield Security Inc have been dissolved”.

The applicant's Case

3 The applicant's case was set out in skeletal form by his Attorney. In part it reads thus:

1.2

The parties were married on 4, February, 1981 in Lintgen Luxembourg. There is one child of the marriage born on 16 December, 1987. The child is now sui juris. At the time of the marriage, the petitioner was 49 years and the respondent 23 years. 1.3. The petitioner was a freelance investment fund adviser, promoter, and prospector for venture capital in high risk speculative markets a sole trader whose success did not depend on works and effort of others, but, rather, solely on personal ability and skill to identify ventures and personal ingenuity to attract investors to join the ventures. His earnings before and after marriage were not from a going concern that was a marketable entity. 1.4. The respondent was a sales clerk who was employed on a cruise ship when the parties met. She brought no capital to the marriage, and at no time engaged in any paid employment. She spent more of her time engaged in studies of esoteric subjects, earning the status of high priestess in one of the disciplines (sic). 1.5. The marriage broke down from in or about 1987, when the respondent was engaged in an adulterous affair with one David Jeanette. It was during this relationship that the respondent executed a deed of guardianship to deprive the petitioner of custody of the child of the marriage. The respondent proposed a divorce and matrimonial settlement. At the time, sexual relations ceased, and the respondent accepted that the marriage had ended. 1.6. In 1992, the respondent, with the agreement of the petitioner, went to Florida to engage in a book publishing business. This required the petitioner to maintain two households as the respondent ceased commuting between Florida and Freeport and refused to return to the matrimonial home. $4,000 monthly was being provided to the respondent for upkeep of the family. 1.7. The petitioner agreed to assist in the financing of the business venture in Florida for two years. Between and during 1992 to 1996, the petitioner caused to be advanced approximately 1.2 million to the respondent's account. There has been no accounting of that advance. 1.8. In September 1997, the petitioner became aware that the respondent was engaged in another adulterous affair with one Wayne Darling, and has been cohabiting with him at 500 Cactus Avenue. They continue to cohabit at this address, and the relationship so far has produced a daughter”.

4 Continuing his submissions, counsel for the appellant next dealt with the application for a Declaration as to the petitioner's interest in the Matrimonial Home in this way:–

• “3.1 The petitioner in 1987 purchased six lots known Lots 30 and 31 Golden Point Road. The lots contained a ruin which the petitioner constructed into a dwelling home and which thereafter was occupied as the Matrimonial Home. The petitioner provided all of the finding for the purchase and subsequent construction of the home. Evidence thereof is seen in the various correspondence contemporaneous with the events.

• See paragraph 20 of First affidavit of FWK

• See paragraph 21 of the Final affidavit of FWK

• 3.2 The title to the property was placed in the name of the respondent and it was understood that the property was to be held as Trustee for herself and the petitioner equally.

• See paragraph 20 of First affidavit of FWK.

• 3.3 The interest of the petitioner is evidenced in a letter of Mr. Christopher Cafferetta the Attorney who acted for the petitioner in the purchase of the home dated 24th March 1998 informing the Government authorities of the acquisition of the home.

• See paragraph 2 of the Second affidavit of FWK.

• 3.4 The respondent's contention that the property was a gift to her is not supported by the admissible evidence and is nevertheless contrary to principles on which the matrimonial home which stands in the name of a spouse alone. In such circumstances the...