Schenk v Schenk et Al

JurisdictionBahamas
CourtSupreme Court
JudgeSawyer, J.
Judgment Date28 Jul 1988
Docket NumberDivorce and Matrimonial Side No. 115 of 1986

Supreme Court

Sawyer, J.

Divorce and Matrimonial Side No. 115 of 1986

Schenk
and
Schenk et al
Appearances

Mr. James M. Thompson with Mr. Andrew Thompson for the petitioner

Miss Leandra Esfakis for the respondent

Family Law - Husband and wife — Matrimonial property — Matrimonial Causes Act, 1973, s. 25 — Order that former matrimonial home he sold, 4/5ths to wife and 1/5th to husband.

Sawyer, J.
1

The parties (hereinafter referred to as the “husband” and “wife” respectively, although a decree nisi was granted on 30 th January, 1987) have been cried since the 2 nd May, 1957 when the husband was years of age and the wife 31 years of age. They now, respectively, 59 and 62 years of age and had lived together as husband and wife for 26 years at Various places in New Providence, ending up at Lyford day before the husband deserted the wife in September, 1983 leaving her in the matrimonial home at Lyford Cay.

2

On the 30 th November, 1987, the adjourned summons in respect of ancillary matters in this action dated 25 th February, 1987 and filed on 27 th February, 1987 was before his Lordship, Gonsalves-Sabola, J. At time, the petitioner abandoned the claim for body of the second child of the marriage who, by that time was over the age of 18 years. The parties also agreed that the husband would pay the wife the sum of $18,000.00 per annum towards the maintenance and education of the second child of the marriage (Linda) while she is pursuing university education leading to first degree.

3

The 3 rd paragraph of the said summons was apparently not proceeded with at that hearing because the conflict of the evidence in the parties' affidavits and the husband was given leave to file a further and fuller affidavit of means within 6 weeks disclosing the entirety of his property of all kinds whatsoever.

4

It is the 3 rd paragraph of that summons which the parties by their counsel argued before me.

5

Although at first there appeared to be some dispute as to the ownership of the matrimonial home, at the end of the day, both sides agreed that it was jointly owned by both the husband and the wife although the title is vested in a company “Elba Limited” all of the shares of which are held by the respondent.

6

It is clear that both parties contributed to he family assets in cash and in devotion to the family unit and the matrimonial home, which was the last in a series of such homes, was purchased with moneys from joint account of the parties - the said moneys being obtained from the sale of the previous matrimonial home.

7

It also became clear, during the course of the its that the business in Jamaica (Waterwheel Restaurant Limited) West Indies which is owned as to 90% by the husband, was purchased by him with moneys from the parties' point account and as such would jointly to both of them.

8

The conduct of that business entitles the dent to live in rent-free (to him) quarters. According to the husband's affidavits his income (as up to the end of 1987) was as follows: –

1983/84 - U.s.$18,000.00

1985 - U.S.$25,00b.00

1986 - U.S.$35,000.00

1987 - U.S.$35,000.00

9

The business, according to the financial statements, showed a net profit for the first time in 1986 of some U.S. $8,270.00. No part of that profit has apparently been paid to the wife.

10

The matrimonial home, in which the wife and children of the marriage remained, was rented out by wife in July, 1985 with the knowledge and consent of the husband; she receives a sum of $4,000.00 per month from that rental.

11

The wife removed to premises at Paradise Island for which she pays a monthly rent of $1,520.00 per month.

12

Although the wife is in her sixties, she has found employment with a real estate firm for which she is paid $200.00 per week and an additional 10% commission on what she earns. During 1986, she earned $10,000.00 by way of commission. It is not clear whether that figure has been constant or has increased decreased. The source of constant income to the wife has been her salary of $200.00 per week plus $48,000.00 per annum rent from the matrimonial home. In 1986, therefore, the wife's gross income would have amounted to $68,000.00. Out of that she spent a total of $43,752.10 including an allowance to the to the children of the marriage of $4,800.00 and University fees of $9,666.00. In 1987 the total expended was $41,463.48; it appears that no university fees were paid by the wife during 1987.

13

Expenses of the matrimonial home during the period 1985 - 1988 amounted to $17,342.04 inclusive of real property tax, home insurance and Lyford Cay Owner's Association fees.

14

The husband's expenses, according to his affidavit sworn on 26 th January, 1989 amounts to U.S.$40,000.00 which is financed from his salary and an interest free loan from the Jamaican company of approximately U.S.$40,000:00. The husband apparently also owed one Jergen Koslich of Switzerland the sum of U.S. $160,000.00 but it is not clear what the terms of that loan were nor when it would be finally paid off. The loan was apparently incurred on behalf of Resorts Ltd. The husband also has, apparently, a fixed deposit account with C.I.B.C. and an account with Flagler Federal in Miami, Florida, the latter being used for the purposes of the business and for paying fees for the education of the children of the marriage as the need arose. It is not disputed that the husband paid the required college fees for the 1 st child of the marriage. The wife avers, however, that she had to pay such fees for the second child of the Marriage and that the husband only paid $5,000.00 toward the younger daughter's expenses in 1985.

15

Counsel for the wife submitted that the husband should be ordered to settle the matrimonial home for benefit of the wife and the children of the marriage he relied on several authorities decided by the Court of Appeal in England, to which I shall refer briefly.

16

The first case relied on by counsel for the wife is Lee v. Lee reported in [1952] 1 ALL E.R. 1299. That case dealt with the deserted wife's right to remain in the matrimonial home under the provisions of the dried Woman's Property Act, 1882 of the U.K. I do not think that it is disputed in this case that the deserted wife had a right to remain in the matrimonial home. However, on the facts as they have been presented, the wife has moved out of the matrimonial home albeit because she was constrained to do so for financial reasons.

17

The second case relied on by counsel for the wife was Le Roy-Lewis v. Le Roy-Lewis reported in [1954] 3 ALL E.R. 57. That case was concerned with the deserted wife's right to reasonable maintenance from her deserting husband and that she would not be required to go out to earn in order to relieve the deserting husband of his financial responsibility to maintain her. In this case no request for such maintenance was made either in the summons or orally before me. While I take into account that the wife in this case could not be “required to go out to work to relieve the deserting husband of his duty to maintain her” I must also take into account the fact that the deserted wife in fact went out to work.

18

Pausing there, much was said about the relative ages of the parties and the need for each of them to have as secure a retirement provision as possible.

19

However, no evidence was given as to when either of would be required to retire - either under the terms of employment in the case of the wife or any agreement with the Jamaican Company, in case of the husband. Further, there is no indication that either e parties intend to “retire” in the foreseeable future nor whether, on retirement there is likely to be a “golden handshake” by way of gratuity or pension benefits to either of them. Le Roy-Lewis v. Le Roy-Lewis” may be distinguished on its facts since here the wife had worked more or less constantly during the marriage and she is older in years than the wife in case and the marriage had lasted longer than in Le Roy-Lewis' case.

20

The next 2 cases - Jones v. Jones [1975] 2 ALL E.R. 12 and Smith v. Smith [1971] 2 ALL E.R. 19 dealt with the transfer of the interest of the husband in matrimonial home to the wife.

21

In Jones v. Jones, the parties who were married in February 1958, when the husband was 38 and wife 28 purchased a home in 1966, which was conveyed into the parties' joint names. In November 1972 the wife obtained a decree nisi, which was made absolute on 18 th April 1973 in consequence of her husband's behaviour. In deciding that the husband's interest in the matrimonial home should be transferred to the wife, the Court of Appeal took into account the facts that as result of the husband's conduct in maiming the wife who was a nurse, she would be unable to work at anything capable of earning a meaningful wage; that when the youngest child of the marriage ceased to be dependent, e wife would be over 50 years and incapable of working by reason of the injuries inflicted by the husband and concluded that in those circumstances, it would be unjust that she should be required to sell the home and look for somewhere else to live.

22

On the facts before me, the wife is already living elsewhere and it was submitted that if the matrimonial home is sold and the proceeds of sale divided equally between the parties, each would be able to obtain suitable accommodation and perhaps have a nest-egg for investment towards their retirement.

23

In Smith v. Smith, decided by Latey, J, the wife applied for an order that the husband's interest the matrimonial home should be transferred to her. The husband cross-applied for an order postponing sale until the child of the family attained 17. When on sale the net proceeds of sale should be divided equally.

24

A similar submission to the husband's cross application in Smith v. Smith was made by counsel for the husband in this case.

25

In that...

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