WM v TM

• Jurisdiction: Bahamas
• Judge: Winder, J.
• Judgment Date: 19 October 2017
• Court: Supreme Court (Bahamas)
• Docket Number: FAM/div 223 of 2015
• Date: 19 October 2017

Supreme Court

Winder, J.

FAM/div 223 of 2015

WM

and

TM

Appearances:

Roshar Brown for the petitioner

J. Michael Saunders for the respondent

Family Law - Applications for ancillary relief – Maintenance for minor children – Considerations in granting maintenance – Division of property – Whether matrimonial home and property should be divided equally between parties – Sections 25, 27 and 29, Matrimonial Causes Act – G v. D [2009] 4 BHS J No. 15 – A v. B [2010] 2 BHS J No. 18 – Miller v. Miller [2006] UKHL 24.

Winder, J.

This is my decision on the ancillary matters following upon the dissolution of the marriage between the parties.

1 The parties were married on 22 October 1985. There are two children of the marriage namely, T M born 8 October 1991 (25 years old) and A M born 30 July 1998 (18 years old). A Decree Nisi was obtained on 15 July 2015, on the ground that the respondent had since the celebration of the marriage treated the petitioner with cruelty.

2 On 11 February 2016, the petitioner filed a Notice of Intention to Proceed with Application for Ancillary Relief. This Notice was supported by an Affidavit of Means filed 11 February 2016. The petitioner sought the following relief in her application:

• (a) The petitioner is to retain the matrimonial property located in Sea Beach Estates;

• (b) The petitioner is to retain the vacant property located in West Winds Subdivision;

• (c) The respondent is to pay the petitioner a lump sum payment of 375,000.00;

• (d) The respondent is to reimburse the petitioner the sum of 23,500.00;

• (e) The respondent is to pay the petitioner the sum of 9,250.00 per month in spousal support and maintenance of the two children of the marriage;

• (f) The respondent is to pay all the tuition and tertiary expenses for the two (2) children of the marriage;

• (g) The respondent is to pay all the medical, dental, vision expenses for the two children of the marriage;

• (h) A declaration under s. 73 (1)(b) of the MCA; and

• (i) The respondent is to pay the petitioner's costs in this matter.

3 The petitioner filed supplemental affidavits of means dated 23 September 2016 and 29 November 2016. The respondent filed his affidavit of means on 21 September 2016, and a supplemental affidavit on 31 October 2016.

4 In the Affidavit of Means dated 21 September 2016 the respondent sought the following Order at Paragraph 17:

• (1) The respondent to be given sixty (60) days to make the necessary arrangements with the bank to resurrect the mortgage and purchase the equity interest of the plaintiff, failing which the property is to be sold and net proceeds to be divided equally between the parties …

• (2) The respondent to be given sixty (60) days to arrange financing to purchase the equity interest in the property located West Wind Subdivision; failing which the property will be sold and the proceeds to be divided equally between the parties.

• (3) As custody of the children of the marriage was granted to the petitioner, they shall reside with the petitioner either in her unit or one of the units next to that occupied by the petitioner.

• (4) The respondent is to pay $3,000.00 towards the petitioner's costs in this matter;

• (5) A declaration under 73(1)(a) of the Matrimonial Causes Act.

5 The parties were each cross-examined on their affidavits. The facts which I accept are the following:

• a) During the marriage in the year 1996 it was agreed between the parties that the petitioner would assume the role of home maker. Prior to this, the petitioner was employed at the Ministry of Agriculture. From this point in the marriage the respondent wilfully assumed the role as the financial provider of the family. These financial responsibilities included paying the mortgage, utility bills, school fees, grocery and medical related expenses. At the time the respondent's financial stability was maintained through four streams of revenue which included a contract with the Ministry of The Environment, a personal loan business, three buses, and rental income.

• b) The petitioner attended to the rearing of the children, cooking, cleaning and maintenance of the home.

• c) The parties acquired two real properties during the marriage namely, a lot of land at Sea Beach Subdivision upon which the matrimonial home was built and a lot of land situate at South Ocean Estates.

• d) Both properties are held by the petitioner and respondent in joint tenancy.

• e) During the marriage the couple purchased either jointly or solely three public buses and began operation of those buses under the franchise “Sunset Bus Service” a company established by the respondent's father.

6 The petitioner seeks maintenance for the children as well as spousal maintenance for herself. The petitioner maintains throughout her Affidavit that the respondent is in the financial position to maintain both children whilst studying abroad.

7 In considering an application for maintenance of the children, the Court is empowered by virtue of The Matrimonial Causes Act (“MCA”) section 27(1) (d) to make an order for the periodical payment of sums to a child. This section provides: 27. (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the Court may make any one or more of the following orders, that is to say;

(d) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified.

8 In considering whether the payment is appropriate the Court has a duty to have regard to all the circumstance of the case including those considerations enumerated by s. 29(2) of the MCA which...