Williams v Williams

• Jurisdiction: Bahamas
• Judge: Mohammed, J.
• Judgment Date: 11 November 2004
• Court: Supreme Court (Bahamas)
• Docket Number: 2002/FAM/div/406
• Date: 11 November 2004

Supreme Court

Mohammed, J.

2002/FAM/div/406

Williams

and

Williams

Appearances:

Ms. Yvette McCartney for the petitioner.

Mr. Elliott Lockhart for the respondent.

Family Law - Divorce — Property adjustment — Matrimonial property in joint names — Land in name of the respondent solely — Shares in a company — Section 29 of the Matrimonial Causes Act Ch. 125 — Judgment that petitioner was entitled to share equally in the land.

Mohammed, J.

1 On February 7, 2003 the petitioner obtained a decree nisi of divorce from the respondent. The parties have now approached the court with a view to adjusting their property rights.

2 The properties to be considered are the matrimonial property situate at lot J, Montagu Estates, New Providence (the Montagu property) and land situate in Long Cay, one of the islands of The Bahamas(the Long Cay property).

3 The Montague property was acquired by the parties in 1976 and is in their joint names. The family resided there with their two children until the petitioner and the children vacated the property in the year 2000. The respondent continued in occupation of the property.

4 The Long Cay property is in the name of the respondent solely which he asserts is trust property for his uncle and brothers and sisters.

6 The parties are also seized of shares in a company of which the petitioner holds two shares and the respondent six shares. Of these shares there is no dispute.

7 Both counsel agree that in exercising its discretion to make property adjustment orders it is the duty of the court to be guided by section 29 of the Matrimonial Causes Act, Ch.125 which mandates the court to have regard to all the circumstances of the case including the following matters:

• (a) The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Counsel for the petitioner submits that the petitioner receives a steady salary from the Government, there is no prospect of a tremendous increase 2) in her income and the respondent has approximately 174 acres of land which can be sold. Counsel for the respondent submits that the respondent has reserves in the sum of $800.00 and his financial position is not likely to change in the foreseeable future. His combined living expenses are in the sum of about $705.00 per month. The petitioner earns $2,738.34 per month.

• (b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future. Counsel for the petitioner submits that the petitioner has no other properties and no savings, save and except the matrimonial assets. Counsel for the respondent submits that the petitioner, having worked for the Government for the duration of the marriage and being so employed today as a nurse, will in the future enjoy a standard of living far superior to that of the respondent.

• (c) The standard of living enjoyed by the family before the breakdown of the marriage. Counsel for the petitioner submits that throughout the marriage save and except 2 years, the parties owned their own home. Counsel for the respondent submits as (b) above.

• (d) The age of each party to the marriage and the duration of the marriage. Both counsel agree that the petitioner is 54 and the respondent is 63 years old and that the parties were married for approximately 29 years. Counsel for the petitioner submits that the petitioner should be granted more of the proceeds of sale in the former matrimonial home and less of the land to enable her to secure a home for herself.

• (e) Any physical or mental disability of either of the parties to the marriage. Counsel for the petitioner submits that on the release of the son of the marriage from prison the sole responsibility remains with the petitioner and this causes a constant mental toll on her. Counsel for the respondent submits that the petitioner nor the respondent suffer any mental or physical disability.

• (f) The contribution made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family. Counsel for the petitioner submits that throughout the marriage the evidence shows that the petitioner contributed more financially which is directly and indirectly to the welfare of the upkeep of the family more so than the respondent. Counsel for the respondent submits the petitioner because of her earning capacity carried the obligation and responsibility for paying the mortgage on the matrimonial home. The respondent earns substantially less (and on a part time basis) and by the arrangements made between the parties, he was responsible for the construction company, paying the utility bills for the matrimonial home and maintaining the family vehicles.

• (g) The value to either of the parties to the marriage of any benefit (e.g. a pension) which, by reason of the dissolution of the marriage that party will lose the chance of acquiring.

8 Counsel for the petitioner cited the following cases in support of her contentions:

• (a) In Mortimer v. Mortimer Supreme Court D & M Action No. 209 of 1998 Justice Smith said “I think it is a good policy that on the breakdown of a marriage where the respondent leaves the petitioner and lives separate and apart from him or her there should, if possible, be a clean break financially when the matter is dealt with by the court.” Smith, J went on to say that” …what I order must be governed by what is fair and reasonable in the circumstances. This means it must be such as could reasonably, from the evidence, be met by the respondent, and it must also be able to help the petitioner.” In the instant case counsel submitted a “clean break” would be for the former matrimonial property to be sold and the proceeds provided as suggested by the Petitioner and the property be divided in Long Cay.

• (b)In Chiffon v. Chiffon[1991] 1 All E.R. 340 Justice Ewbank stated that “it is of course important to retain flexibility to meet the circumstances of individual cases and changes in social conditions. On the other hand, justice and the provisions of the statute usually indicate that an asset which has been acquired by the joint efforts of the spouses should eventually be shared.” In this case counsel submitted there are several assets the family have acquired with their joint efforts, even if the conveyance in the Long Cay property is in the sole name of the respondent. The petitioner is entitled to half of the of the family assets, especially since she was the main contributor directly and indirectly to the family.

• (c) Beckford v BeckfordD& M Action No. 470 of 1986. Malone Senior Justice stated at page 2 “In exercising it powers to make an order for property...