Smith v Smith
| Jurisdiction | Barbados |
| Judge | Richards, J. |
| Judgment Date | 11 December 2015 |
| Neutral Citation | BB 2015 HC 45 |
| Docket Number | 257 of 2004 |
| Court | High Court (Barbados) |
| Date | 11 December 2015 |
High Court
Richards, J.
257 of 2004
Mr. Emerson Graham, attorney-at-law for the applicant/Husband.
Mr. Clement Lashley Q.C. in association with Ms. Honor Chase, attorneys-at-law for the respondent/Wife.
Family Law - Husband and wife — Matrimonial property division — Application by husband for property settlement — Whether husband was entitled to a share of the matrimonial home — Whether husband was entitled to a share of a joint account — Whether matrimonial home should be sold and husband paid an equitable share of the proceeds of sale — Whether husband should be paid an equitable share of the lottery money paid into the joint account — Application by wife for maintenance.
Before the Court is an application for a property settlement, pursuant to the Family Law Act, Cap. 214 (“the Act”). There is also an application by the Wife for maintenance.
The parties were married on the 4th September, 1993, and their divorce finalised on 4th October, 2004 with the grant of decrees nisi and absolute by Blackman, J. The first contact this Court had with this matter was on 6th March, 2007, when a valuation of the matrimonial home was ordered. The file indicates that between March 2010 and May 2011, the matter passed through the hands of at least two other judges. Notice of a change of lawyer was filed for the Husband on 30th April, 2010. The next interface with this Court was in September 2011, when the trial commenced. In the interim period, the parties occupied themselves with the filing of several affidavits and other documents.
The parties met sometime in the late 1980s to the early 1990s. When they met, the Wife was a spinster who lived with her mother at Richmond Gap, St. Michael. The Husband was married but separated from his previous wife, and he lived in shared rented accommodation at Cave Hill, St. Michael. The Wife's mother, Clotilda Worrell, appears to have played the role of matchmaker. Clotilda allowed the Husband to move into a house she owned at Richmond Gap. This house was near to where she lived with her daughter the Wife.
The parties began an intimate relationship, and lived together at Clotilda's house for a few months prior to their marriage in 1993. At the time of the marriage, the Wife was 53 years of age and employed as a cook at the Barbados Yacht Club. The Husband was 50 and divorced for less than a year when he remarried. He was employed as a security guard at the Caribbean Broadcasting Corporation (CBC).
As a married couple the parties continued to live with Clotilda until the Husband moved into their newly constructed matrimonial home at Headley's Land, Deacons Road, St. Michael, between 1995 and 1996. The Wife followed the Husband to the matrimonial home, after her mother died in December 1997. She owned the land on which the matrimonial house was built. A chattel house is next door to the matrimonial home. It is also on the Wife's land, and was renovated prior to the marriage. In November 2001, the Husband registered the chattel house in their joint names at the Inland Revenue Department.
In March 1996, the Wife won a Lotto jackpot of $500,000.00. From the prize money a car was provided for the Husband; the Wife bought a house for herself and one of her daughters at Vauxhall Gardens, Christ Church; and the matrimonial home was completed and furnished, among other things. In November 2002, $180,000.00 was placed in a fixed deposit in the joint names of the parties. The Wife received the interest payments on the deposit until it was frozen by the bank.
There is no agreement on the date of the breakdown of the marriage. The Husband left the matrimonial home, and took up residence at a house at Barkers Road, Haggatt Hall, St. Michael. This house was inherited from his father who died on 30 September, 2000. He shares the ownership of the house with a sister. The Wife continued to reside at the matrimonial home.
There are no children of the marriage. However, the Wife maintains an adult daughter from a previous relationship. This daughter is mentally challenged.
On 29th September, 2004, the Husband filed an application asking for the following:
- a declaration that he is entitled to a share of the matrimonial home at Headley's Road Deacons Road, St. Michael; 2. a declaration that he is entitled to a share of a joint account held at the Warrens, St. Michael branch of First Caribbean International Bank; 3. an order that the matrimonial home be sold by private treaty or by auction, and that he be paid an equitable share of the proceeds of sale; and 4. that he be paid an equitable share of the lottery money paid into the joint account.
A lengthy amended application was filed by the Husband on 30th January, 2009. In that application he sought expanded orders in relation to the matrimonial home; a lump sum payment; further orders pertaining to the fixed deposit with the Lotto winnings; and orders concerning the property at 70 Vauxhall Gardens, Christ Church.
The expanded application for the matrimonial home requested, inter alia:
- a declaration as to the existing title or rights to the matrimonial home; and 2. an order altering the interest of the parties in the matrimonial home so as to transfer to the Husband a one-half or other share of the beneficial interest in that property.
The orders applied for with respect to the fixed deposit are:
- a declaration that the Husband is entitled to a one-half share of the $180,000.00 on this account; and 2. an order that the Wife pays to the Husband one-half of all the interest paid to her from the fixed deposit.
The orders sought pertaining to the Vauxhall property were uplifted into a Take Notice filed by the Husband on 18th March, 2009. The Husband gave notice of his application for:
- a declaration that the purchase of the property at 70 Vauxhall Gardens, Christ Church was made to defeat the rights of the Husband in the funds jointly owned by the parties; 2. a declaration that the Husband is entitled to the sum of $62,500.00 being the value of the one-half share or interest of the sum of $125,000.00 used for the purchase of the said property in the joint names of the Wife and her daughter, such sum being part of the proceeds of the monies won by the Husband and the Wife in a lottery in April 1996; 3. an order that the Wife pays to the Husband, within 3 months, the said sum of $62,500.00, being the value of one-half share or interest in the sum of $125,000.00 used for the purchase of the said property in the joint names of the Wife and her daughter; 4. an order setting aside the Conveyance dated 7th August, 1996 which granted a one-half share in the said property to the Wife, and a transfer of the one half-share to the Husband; and 5. an order that the Wife pays the Husband interest on the sum of $62,500.00, calculated at 8 percent per annum for the period August 1996 until payment.
By a supplemental application filed on 14th February, 2011, the Husband applied for these additional orders:
- a declaration as to the existing title or rights to a house adjoining the matrimonial home; and 2. an order altering the interest of the parties in the adjoining house and the rents collected therefrom, so as to transfer to him a one-half or other share of the beneficial interest in the said house and rent as the Court determines to be just and equitable.
In her affidavit filed on 2nd March, 2007, the Wife asked the Court to make such orders as may be just pursuant to the relevant provisions of the Act. (See para.17). At paragraph 13 of this affidavit, she requested the Court to alter any share or interest it may find that the Husband holds in the fixed deposit, by returning that share or interest to her pursuant to section 57 of the Act.
The Wife also filed an application on 3rd February, 2009, requesting:
- periodic maintenance pending the disposal of these proceedings; and 2. an order for maintenance, including a maintenance component in the property settlement.
The parties filed a plethora of affidavits. The Husband filed affidavits on 28th September, 2004, 12th October, 2007, 14th April, 2008, 24th November, 2008, 30th January, 2009, 13th March, 2009, and 11th November, 2014. Affidavits were filed by the Wife on 2nd March, 2007, 5th November, 2007, 26th November, 2008, 3rd February, 2009, and 20th March, 2009.
A number of statements of financial circumstances were filed over the years. The Husband filed four statements on 28th September, 2004, 25th November, 2008, 21st February, 2011, and 7th November, 2014. The Wife filed three statements on 2nd March, 2007, 13th May, 2011, and 26th November, 2014.
Additional affidavits were filed by third parties. Mr. Allan Layne filed an affidavit on behalf of the Husband. And after the trial began, Mr. Earl Broomes, a former son-in-law of the Wife, filed a supporting affidavit on her behalf.
The Court derives its jurisdiction to make declarations in relation to the property rights of married persons, or persons in a union other than marriage, from Section 56 of the Act.
Further, Section 57 provides that:
“1. In proceedings in respect of the property of the parties to a marriage or union or of either of them, the Court may make such order as it thinks fit altering the interests of the parties in the property including
(a) an order for a settlement of property in substitution for any interest in the property; and
(b) an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage or union, such settlement or transfer of property as the Court determines.
2. The Court shall not make an order under this section unless it is satisfied that, in...
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