Mortimer v Mortimer

JurisdictionBahamas
CourtSupreme Court
JudgeSmith, J
Judgment Date01 Oct 1990
Docket NumberDivorce and Matrimonial Side No. 209 of 1988

Supreme Court

Smith, J.

Divorce and Matrimonial Side No. 209 of 1988

Mortimer
and
Mortimer
Appearances:

Mr. E. Turner for the petitioner

Mr. S. Turnquest for the respondent

Family law - Husband and wife — Divorce — Separation for at least 5 years — Maintenance — Property settlement — Parties married eighteen years — Five children of the marriage — Application made long after breakdown of the marriage — Matrimonial Causes Act, s. 29.

Smith, J
1

The Petitioner is a house-wife and now lives at Mason Street here in New Providence. The respondent is a businessman and lives in Danottage Estate also in New Providence. She is now 53, he is 60 years of age.

2

By a petition dated 16th May, 1988 and amended on the 5th October, 1988 the petitioner sought dissolution of her marriage on the ground that the respondent lived separate and apart from her for a continuous period of at least five years immediately preceding the presentation of the petition. Decree nisi was granted by me on the 3rd March, 1989. The respondent did not defend the petition. The decree has not yet been made absolute.

3

In the prayer of her petition, the petitioner asked for the following financial relief:–

An order for maintenance pending suit;

Periodical payments;

Secured periodical payments;

A lump sum; and

Property adjustment.

4

By a Notice of Intention to proceed with the application for anciliary relief dated 20 July, 1989 she sought an order for the conveyance to her of one of the properties alleged to be owned by the respondent and a lump sum payment. This matter also now falls to be settled by me. The petitioner had earlier applied for maintenance pending suit and on the 12th December, 1988 the court had ordered the respondent to pay her the sum of $300.00 a month pendente lite. That order is still extant.

5

The marriage took place on the 16th February, 1955, and there are five children of the family. All of these children are now sui juris. The separation took place in 1973.

6

This is an unusual case.

7

In the petition the ground for the prayer for the dissolution of the marriage was that the “petitioner and the respondent have lived separate and apart for a continuous period of at least five (5) years immediately proceeding the presentation of the petition, namely from 1973 when the respondent left the petitioner to the present time.” By an earlier petition, later abandoned and dismissed, the petitioner had prayed to the court to grant her a decree that the petitioner and the respondent be judicially separated on the ground that the respondent by his words and conduct caused the petitioner to leave the matrimonial home against her will. The times given in that dismissed petition as the date is the same as given in this petition.

8

It is clear from the evidence that it was the petitioner who left the matrimonial home; but a spouse voluntarily leaving the other spouse cannot come to the court and succeed under section 16(1) (d) of the Matrimonial Causes Act which makes as a ground for dissolution of a marriage “that the respondent has lived separate and apart from the petitioner for a continuous period of at least five years immediately preceding the presentation of the petition”. The evidence of the words and conduct of the respondent must therefore have been such as to convince the court that the petitioner did not leave the respondent and the matrimonial home voluntarily.

9

It is also accepted that when the petitioner left the respondent she left the older children with him and he looked after and cared for them apparently until their maturity.

10

By affidavits filed for both parties it is shown that the respondent, either directly or through a company of which he is the major shareholder, owns considerable property including a yacht valued at over half million dollars which the respondent admits is not doing what it was acquired to do. This property has been valued by his banker to be in excess of one million dollars. Much, if not all of this property, however, is very heavily mortgaged; and faced with having to pay either by himself or through the company, a monthly sum in excess of $6,200.00, the respondent has had to resort to a liquidation of the real assets in his and the company's names. Some of this property was acquired after the separation.

11

Since leaving the respondent, the petitioner has been living in accommodation apparently provided for her by relatives as was also her sustenance during the period. She is not at all well off financially. Indeed she is unemployed and has no income. She is a chronic sufferer and has had periodically...

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