Richardson v Richardson
| Jurisdiction | Anguilla |
| Judge | Hariprashad-Charles, J |
| Judgment Date | 31 July 2001 |
| Neutral Citation | AI 2001 HC 6 |
| Docket Number | 54 of 1995 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 31 July 2001 |
High Court
Hariprashad-Charles, J.
54 of 1995
Mr. Elson A. Gaskin for the petitioner.
Mr. G. Hamilton for the respondent.
Family law - Divorce — Property settlement — Petitioner sought determination and valuation of her interest in matrimonial property — Respondent claimed entire legal and beneficial interest — Contributions by petitioner — Whether there was a common intention for petitioner to have an interest — Sec. 27 Matrimonial Proceedings and Property Ordinance considered — Finding that petitioner entitled to a 1/3 share of property — Order that petitioner be paid lump sum of $40,000 representing her 1/3 interest — Each party to bear his/her own costs.
The petitioner and the respondent started corresponding by letter writing in or about 1975. They subsequently formed a romantic association sometime in 1981 when the respondent went to work in Montserrat.
The parties were married in 1985 after going through two ceremonies of marriage; a civil ceremony in Anguilla in July 1985 and a religious ceremony in Montserrat in July of the said year.
In July 1985, the petitioner left her homeland to join her husband in Anguilla. He was building a house at the time. The house was not yet completed. As a result, she lived with friends until September 1985 when they moved into the matrimonial house. Both parties were working and had fairly decent jobs. A son, ROHAN AZEEM KAREEM was born on 23rd day of October 1986. Problems surfaced almost from the inception of the marriage. On 4th day of January 1988, less than three years after tying the nuptial knot, the petitioner left the matrimonial home. Even though the parties lived separately, there were attempts at reconciliation and a resumption of cohabitation. According to the petitioner;
“When I left the matrimonial home, we couldn't agree at all but at the end of the year (1988), he came around and early 1989, I started washing and cooking for him. I had to go by his home every weekend to wash and I cooked lunch for my husband every day except weekends. This continued until close to the end of 1990. I had my first child by then. The respondent made no financial contribution in respect of the washing and cooking except the water and soap powder at his home …The respondent spoke to me about returning to the matrimonial home. The first time he asked me was in 1988. I was scared to return home and in 1991, he asked me again. In 1991, the respondent and I were making serious efforts to reconcile. The respondent and I have a child born in 1992. He wanted us to get together so we started a relationship and a second child was born in May 1992. After I had conceived, I thought that the respondent was not serious to resume the relationship because of his behaviour. The relationship between the respondent and myself came to a final end after I had conceived.”
In June 1995, the petitioner filed a petition for divorce on the ground of the irretrievable breakdown of the marriage in that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. A decree nisi was pronounced on 28th day of June 1996.
On 27th day of September 2000, the petitioner applied for ancillary relief pursuant to the Matrimonial Proceedings and Property Act 1990 seeking the following Orders:
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(i) That custody of the two minor children of the family ROHAN AZEEM KAZEEM RICHARDSON and JAN RENICK RICHARDSON be vested in herself and the respondent with care and control to the petitioner and reasonable access to the respondent.
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(ii) That the respondent pays to the petitioner for the children of the family such periodical payments as the court may deem just.
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(iii) A determination and valuation of the petitioner's right title and interest in the matrimonial property Registration Section North Block 58115B Parcel 180 and an Order that the respondent pay a sun equal to the value of the said interest to the petitioner.
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(iv) Costs.
On the date of hearing, the matter proceeded on the basis that there was no real dispute regarding maintenance and custody of the two children of the marriage. The only contentious issue related to the matrimonial house.
There is no dispute that the land on which the matrimonial home was built was given to the respondent by an aunt in 1979. Also, undisputed is the fact that the respondent started building the matrimonial home in early 1982 after securing a loan of $40,000.00 from Barclays Bank. It is accepted that the entire loan repayment was from the respondent's salary. What is in issue is whether or not the petitioner is entitled to a beneficial interest in the matrimonial home,
The respondent alleged that the house belongs to him absolutely and that the petitioner has no interest in it. At paragraph 13 of his affidavit sworn to on 23rd day of October 2000, he averred:
“By the time I got married in April of 1985, the house was about 90% completed and habitable but there was still some minor work to be done. The portions that were necessary to be completed were as follows: tiling needed to be completed in the living room, kitchen and corridors. These were however in the process of being tiled; about half of the house were painted and the balance needed to be painted; one of the two bathrooms was completed and the other was incomplete in that though the cabinets were all built in and the plumbing pipes were roughed in, the bathrooms fixtures, that is to say: the face basin and the toilet bowl were not installed. At the present time those fixtures are still not installed as there really was no need for their installation.”
Under intense cross-examination by learned counsel for the petitioner, the respondent testified thus: “In April 1985 there were one or other things to be done to the physical structure of the house and this was completed by the time we moved into the house in September 1985.”
The petitioner claims a beneficial interest in the matrimonial home on the basis of her contributions and that the respondent led her to believe that the matrimonial home was for their joint benefit and that she relied on those assurances to her detriment and to the benefit of the respondent in allowing him access to and control over her funds.
In her affidavit, she deposed as follows:
“The said matrimonial home was little more than a shell when we moved into it in 1985, The said house was unpainted, the bathroom was incomplete in that it had no plumbing fixtures and needed to be tiled. The said house also needed certain major appliances such as refrigerator and a stove and other furnishings. Additionally there were numerous small odds and ends around the house to be completed. I contributed to the completion of the house in that I purchased tiles, bathroom fixtures, a refrigerator, a stove, paint and furniture. I financed these said purchases by way of a loan from Caribbean Commercial Bank…”
In the said affidavit, the petitioner continued her evidence:
“It was always the common intention between the respondent and myself that the matrimonial home would be for both our benefit. The respondent led me to believe that the house once it was completed it would be my house as well as his. I relied on the respondent's assurances and acted to my detriment and to the benefit of the respondent in allowing the respondent access to and control over my funds.”
The respondent emphatically denied that there was any common intention that the petitioner was to have any beneficial interest in his property. He alleged that the petitioner never made any contribution to the acquisition of his property and as a consequence, is not entitled to any beneficial interest therein.
In almost all divorce cases and this one is no exception, the court is concerned how the matrimonial property of the parties should be divided. Stated in the most general terms, the answer is obvious. Everyone would expect the outcome to be fair. More realistically, the outcome ought to be as fair as is possible in all the circumstances.
Before a fair outcome could be reached, the court has the mammoth task of sifting the evidence to find out where the truth lies.
The evidence in the instant case is conflicting. The petitioner says one thing, the respondent another. In examining the evidence, I was much more impressed with the demeanour of and the evidence given by the petitioner. She impressed me as a witness of truth. I cannot say the same for the respondent, It became transparent during his cross-examination that he was not being forthright to the court. I am therefore more inclined to accept the petitioner's evidence to that of the respondent.
It is accepted that when the parties married each other in 1985, the respondent was the sole legal owner of the property and that the entire beneficial interest therein resided in him alone.
It is settled law that in the absence of an agreement, understanding or common intention between the parties, the court has no power to vary the beneficial interest of the parties therein. And in the absence of an express agreement, a common intention must be implied having regard to all the circumstances of the case, In Grant v. Edwards et al [1986] 2 All E.R. 426 at page 431, Sir Nicholas Browne-Wilkinson, V.C. declared:
“In order to decide whether the plaintiff has a beneficial interest in the matrimonial property, we must climb again the familiar ground which slopes down from the twin peaks of Petitt v. Pettitt [1969] 2 All E.R. 385 and Gissing v. Gissing [1970] 2 All E.R. 780. In a case such as the present, where there has been no written declaration or agreement, nor any direct provision by the plaintiff of part of the purchase price so as to give rise to a resulting trust in her favour, she must establish a common intention between...
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