R v G and A

JurisdictionBahamas
CourtSupreme Court
JudgeBain, J.
Judgment Date19 Aug 2013
Docket NumberFAM/div 7 of 2009

Supreme Court

Bain, J.

FAM/div 7 of 2009

R
and
G and A
Appearances:

Mrs. Ruth Bowe-Darville for the petitioner.

Mrs. Lillith Mackey for the respondent.

Family Law - Matrimonial property division — Contributions of the parties — Principles of equal sharing in the division of matrimonial property — Principle of fairness — No bias in favour of the money earner against the homemaker — Whether there should be a departure from the equality principle — Conduct of the parties — Section 29 of the Matrimonial Causes Act.

Bain, J.
1

(1) The petitioner and respondent were married on 30 May 1992. There are two children of the marriage namely DGRB Jr. born 20 February 1993 and DGVB born 6 June 1995.

2

(2) A Petition was filed by the petitioner on 8 January 2009 alleging that the respondent had committed adultery and that the respondent had since the celebration of the marriage treated the petitioner with cruelty. The respondent filed an Answer and Cross Petition alleging the petitioner had since the celebration of the marriage treated the respondent with cruelty.

3

(3) A Decree Nisi was granted on 10 November 2009 to the petitioner on the ground that the respondent had since the celebration of the marriage treated the petitioner with cruelty and a Decree Nisi was also granted to the respondent on the ground that the petitioner had since the celebration of the marriage treated the respondent with cruelty.

4

(4) After hearings dealing with the children of the marriage the petitioner and respondent reached a consent position with respect to the children of the marriage. By a Consent Order filed 19 April 2012 it was ordered that –

  • “1. The petitioner and the respondent have joint custody care and control of the minor child of the marriage namely DGVB born 6 June 1995.

  • 2. The petitioner continues to be responsible for the maintenance and education of both children of the marriage inclusive of DGRB Jr. born 20 February 1993.

  • 3. The petitioner continues to be responsible for all medical, dental and optical expenses of the said children of the marriage.”

5

(5) An Interim Order was made on 25 January 2010 ordering the respondent to contribute the sum of $1, 000.00 monthly towards payment of the mortgage. This Order was suspended by Order made 7 September 2010 and reinstated by Order made 5 May 2011.

6

(6) The issue to be determined is the adjustment of the matrimonial property.

7

(7) The matrimonial property consists of the matrimonial home located at Lots No. 35, 36, 37 and 38 Love Beach Estate. The matrimonial home consists of four town house apartments. One of the apartments was used as the matrimonial home and the other apartments were rented. The matrimonial property is subject to a mortgage at Bank of The Bahamas. The matrimonial home was appraised in 2010 by Paul Ritchie Real Estate at the value of $992, 000.00. At the time of these proceedings the amount owing on the mortgage was $425, 870.00. The petitioner paid the mortgage monthly in the sum of $4, 500.00.

8

(8) The petitioner and the respondent resided in the matrimonial home with the children of the marriage. The apartment contained three bedrooms. One bedroom was occupied by the petitioner, one bedroom by the younger son and the respondent shared a bedroom with the oldest son. One of the apartments was not rented for upward of six months. The respondent requested that she be allowed to move into the apartment. By Order of this court dated 7 September 2010 and filed 15 May 2012 the respondent was permitted to move into a vacant apartment. The petitioner was requested to assist the respondent in her move by allowing her to remove items to set up house. The petitioner failed to assist the respondent and instead he locked the respondent out of the matrimonial home and packed her clothes.

9

(9) The petitioner maintained that he acquired the matrimonial property before the marriage. In his Affidavit filed 22 January 2010 the petitioner stated –

“…The matrimonial home was acquired in 1990. When the respondent and I married I included her name on the conveyance as I thought it was the “right” thing to do as a newly married couple. However, at the time the respondent's name was added to the conveyance the property was fully paid for.”

10

(10) After the marriage the petitioner and the respondent attained a mortgage from Bank of The Bahamas in the amount of $400, 000.00. According to the respondent the arrangement between the petitioner and the respondent during the marriage was that the petitioner paid the mortgage in full and all expenses for the home and the children of the marriage and the respondent would contribute $1, 000.00 per month. The respondent maintains that she contributed also to the purchase of furniture, clothing and other items for the children and also she purchased groceries.

11

(11) The petitioner denied that there was any arrangement and maintained that the respondent made no contribution whatsoever during the marriage. The respondent had no record of any payment, and maintained that she gave the petitioner $1, 000.00 in cash every month. The petitioner used cheques to pay the bills.

12

(12) The petitioner in his Affidavits did not accept that the respondent made any contribution towards the matrimonial home or the children of the marriage. I accept the evidence of the respondent over that of the petitioner in this regard and find that the respondent contributed $1, 000.00 per month during the marriage towards the matrimonial expenses.

13

(13) The petitioner was and still is a banker at a leading commercial bank. The petitioner has moved up the ranks to become a Manager at one of the branches. The respondent is a nurse employed by the Government of The Bahamas. The respondent worked in Exuma and Abaco and is now in charge of one of the Clinics operated by the Ministry of Health in New Providence.

14

(14) The petitioner received the proceeds of rental of the three units and the funds were used to assist with the matrimonial expenses. The petitioner controlled the finances for the family.

15

(15) The petitioner maintains that the respondent should receive a 33% interest in the matrimonial home. The respondent maintains that she is entitled to one half of equity of the matrimonial home. Counsel for the respondent indicated to counsel for the petitioner that the respondent would be prepared to accept $175, 000.00 for her interest in the matrimonial home.

16

(16) There is no doubt that the petitioner and the respondent hold the property as joint tenants as evidenced by the conveyance. By letter dated 20 September 2010 the petitioner has offered the respondent the sum of $60, 000.00 in full settlement of her interest in the matrimonial home. In offering the amount the petitioner in his offer proposed to assume full responsibility for the maintenance and educational expenses for the children. Counsel for the petitioner wrote –

“The last item is predicated on the fact that the two boys are presently in high school. Mrs. B makes no contribution to the boys' educational expenses presently. The older boy graduates high school in 2011 and will continue his education as follows:-

“2 years at the College of The Bahamas @ $2, 500.00/yr $5, 000.00

4 years at University @ $35, 000 — $40, 000/yr $140, 000 — $160, 000.

The younger boy still has three years at high school and will continue his education in a similar manner.

3 years at St Augustine College @ $1, 750.00/yr $5, 250.00

2 years at College of The Bahamas @ $2, 500.00/yr $5, 000.00

4 years at University @$35, 000.00 — $40, 000.00/yr $140, 000 — $160, 000.00.”

(These quotes do not include the other extraordinary fees associated with college admission books, registration fees, insurance, and transportation all which increase yearly. Further there has been no inclusion of an inflationary figure considering that the obligation will continue until the younger child is 23 years old). The sums quoted are static.

The total sum (based on the minimum sum quoted) is $300, 250.00. Should Mrs. B be called upon to pay one half of these future expenses she will pay $150, 125.00. Considering the sum she has asked for her balance would be approximately $25, 000.00.”

17

(17) Since the offer made by the petitioner, the petitioner agreed to continue to be responsible for the educational expenses of the two children of the marriage and an order was made to this effect and filed on 19 April 2012.

18

(18) It has been held in numerous cases that the court applies the modern approach of equal sharing in the division of property in a marriage. These principles have been laid down in Miller v. Miller, McFarlane v. McFarlane where Baroness Halle of Richmond stated that in considering the settlement of matrimonial property –

“The ultimate objective is to give each party an equal start on the road to independent living.”

19

(19) In A v. B (2009 Fam/div) Barnett CJ held that the modern approach to a division of property in a marriage is equal sharing of property unless there is a compelling reason to depart.

20

(20) This concept of fairness was reiterated by Lord Nicholls of Birkenhead in Miller v. Miller, McFarlane v. McFarlane [2006] A.C. 618 where he stated–

“Marriage, it is often said is a partnership of equals. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of a partnership unless there is good reason to the contrary. Fairness requires no less.”

21

(21) This concept has been upheld in many other decisions from this court and the court of the Caribbean. The Court of Appeal of Hong Kong in considering the fairness principle in DD v. LKW 2008 2 HK 134.

“The equality approach in White and Miller on the division of family assets on divorce should be firmly embraced. On marriage the parties committed to...

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