Gumbs v Gumbs

• Jurisdiction: Anguilla
• Judge: George-Creque, J.
• Judgment Date: 10 October 2004
• Neutral Citation: AI 2004 HC 11
• Docket Number: AXAHMT2003/0015
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 10 October 2004

High Court

George-Creque, J.

AXAHMT2003/0015

Gumbs

and

Gumbs

Appearances:

Mr. John Wigley instructed by Wigley & Associates for the petitioner

Ms. Keesha Webster appearing amicus on behalf of the respondent

Family law - Divorce — Matrimonial property division — Evidence of common intention to hold beneficial interest in property as joint owners — Respondent held entitled to half share in matrimonial home.

George-Creque, J.

1 This matter is for ancillary relief filed by the petitioner on April 6th 2004 after the petitioner was granted a decree nisi of divorce on 18th December, 2003 and is brought under the Matrimonial Proceedings and Property Act. The parties were married in April, 1995 but they became romantically involved some 5 or 6 years prior. The union produced two children, a girl and a boy ages 8 and 4 respectively as at the date of hearing. They currently reside with their mother, the respondent, in the matrimonial home. The petitioner lives elsewhere having moved out of the matrimonial home sometime around the end of February, 2003. The respondent is a teacher by profession and the petitioner a tile layer.

2 The prayers sought in this application in respect of the custody and maintenance of the children, have already been determined and orders made in respect thereof. The remaining aspects left to be determined, on which a decision was reserved relates to –

• (a) the share of the respondent in the matrimonial home, comprised in parcel 198 Block 38712B South Central Registration Section,

• (b) the ownership of two vehicles — an F50 pick up truck and a Honda motor car,

• (c) the respondent's share in parcel 336 Block 38712B South Central Registration section comprising land adjoining the matrimonial home,

• (d) The respondents interest in any shares or ownership of any interest held by the respondent in Trans Anguilla Airways (2000) Ltd. as disclosed on the affidavit evidence filed on behalf of the petitioner and the respondent in respect of this application. Two affidavits were filed on behalf of the petitioner and two on behalf of the respondent. The court was asked to determine the matter, based mainly on the affidavit evidence of the parties. Oral evidence was given by the parties but only as it related to obtaining further information regarding the petitioner's position and relation with Trans Anguilla Airways (2000) Ltd.

The Matrimonial Home

3 The land on which now stands the matrimonial home was purchased sometime in 1991 with the assistance of a loan granted by Scotia Bank to the petitioner, which loan was repaid by him. The respondent at that time was attending college in the Bahamas. The home began in 1994 with the petitioner constructing the foundation in respect of which he provided much physical labour. He called it a labour of love. The respondent says, she provided moral support and limited financial assistance whenever necessary. The petitioner obtained a loan of EC $60,000.00 from Caribbean Commercial Bank (“CCB”) in October 1994 to assist with the construction of the house. He says, which I accept, that at this time he had constructed the house up to the stage of the ring beam. At this stage I believe that respondents contribution was minimal. She had just returned from college. The loan was used to bring the house closer to completion. After the parties were married, in June 1995 the CCB loan was refinanced and an additional EC $30,000.00 loaned bringing the total loan to EC $90,000.00. At this juncture the respondent's name was added to the loan documentation as a co borrower and the instalment payments on the loan paid directly out of her salary. The additional $30,000.00 was used to finish the house and the parties moved into the house at the end of that month. At the time of refinancing the loan the petitioner had repaid CCB on the initial loan some $7,000.00. At paragraph 15 of his affidavit sworn on 24th June 2004, the petitioner stated that the refinancing was undertaken to give support to the huge investment already engaged into by him. After the parties separated in February, 2003, the respondent was still paying the mortgage instalments on the home. The respondent helped to furnish the house. I am satisfied that during the marriage they both shared the responsibility for the household expenses and in providing for the needs and comforts of the family.

4 The parties accept that the house now has a value of between US $120,000 – $130,000, as per valuation, made by Mr. Cleveland Richards dated 20th January, 2004. The question then is the size of the share held by the respondent in the matrimonial home. Counsel for the petitioner urges upon the court the a 1/4 share based on the fact that the petitioner bought the land solely from monies provided by him and engaged in a substantial portion of the construction. Further he says that there was no common intention shown to own the home jointly at commencement but only after almost on completion of the house when the respondent began paying the mortgage instalments. He also contends that the marriage was short lived — less than 9 years — and thus the starting point ought to be less than 1/3 based upon the so called 1/3 rule laid down in Wachtel v. Wachtel [1973] All E.R. 829. Counsel for the petitioner, relied on passages contained in Bromley's Family Law; 8th Edition pgs. 586–594.

5 Counsel for the respondent, on the other hand, urges the court to find that they are each entitled to a half share therein and that a common intention to hold the property jointly can easily be inferred from the parties' conduct of their affairs. She cites in support Cupid v. Thomas, (1985) 36 W.I.R. 182; Williams v. Williams, (1986) 39 W.I.R. 140; Grant v. Edwards, [1986] 2 All E.R. 426; and Forrest v. Forrest, (1995) 48 W.I.R. 221; all cases in which the issue of ascertaining a common intention was considered by the courts. In Cupid v. Thomas, Bishop, J.A. in delivering the judgment of the Court of Appeal quoted Fox, L.J. in Burns v. Burns, ( [1984] 1 All E.R. 244; where at page 251 of his judgment he stated that, the court ought, “to consider all the evidence including the contributions of the parties down to the date of the separation…” He also set out what was needed to prove a common intention and stated thus – “What is needed… is evidence of a payment or payments by the plaintiff, which it can be inferred was referable to the acquisition of the house, if for example, the payer either (a) pays...