|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Trinidad and Tobago Court of Appeal |
] [Hide Context] REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cv Appeal No.10 of 2002
BETWEEN
MARGUERITA ABRAHAM APPELLANT AND
STEPHEN ABRAHAM RESPONDENT
PANEL:
A. LUCKY, J.A.
W. KANGALOO, J.A. S. JOHN, J.A.
APPEARANCES:
MRS L. SUITE
APPEARED ON BEHALF OF THE APPELLANT
MR S. MARCUS, S.C. AND MS P. DINDIAL APPEARED ON BEHALF OF THE RESPONDENT
DATE DELIVERED: 31 st October 2002
1
JUDGMENT
Delivered by Lucky JA
This is an appeal from an order made by Best J on 13 th December
2001 in the exercise of the powers conferred on the Court by the Matrimonial Proceedings and Property Act (the Act) whereby he ordered that:
(1) a property in the United Kingdom which the parties, Marguerita Abraham (the wife) and Stephen Abraham (the husband), jointly owned be sold and the funds realised therefrom be used to purchase a home for the wife and children of the family in Trinidad, to a value of two-thirds of the Bayshore property (the matrimonia l home);
(2) the new home be purchased in the name of the wife for life or re- marriage with the residue going to the three children of the family;
(3) the outgoings of the new home (land and building taxes, water and sewerage bills and insurance of the building) to be shared equally between the wife and husband until the achievement of majority by the last child of the family or further order;
(4) within seven days of the purchase of the ‘new’ property the wife do remove all her personal property and give vacant possession of the Bayshore property to the husband;
(5) the husband, pay to the wife $3,000 per month maintenance for the three children until the age of eighteen years or further order; the husband pay the wife $4,000 per month maintenance or further order,
2
and that the payments of maintenance for the children and wife commence from 31 st October 2001, and
(6) liberty to apply.
On 16 th March 2001, Best J had made an order in the following terms that:
(1) the property in England (the property) be sold and the funds realised therefrom be used to purchase a home for the wife in Trinidad (this was modified in the order of 13 th December);
(2) all outgoings on the new property be shared equally between the husband and wife until the achievement of majority by the last of the children of the family or further order;
(3) within seven days of the purchase of the property the wife give vacant possession of the property at 60, Cedar Avenue, Bayshore (the matrimonial home) to the husband;
(4) the husband do pay the wife $4,000 per month for eighteen months from 1 st April 2001 and therefore on the 1 st day of each succeeding month to assist with the rehabilitation of the wife into the workforce.
(The wife has begun to work on a very modest scale as a real estate agent);
(5) the husband pay the costs of the application to the wife fit for one
Counsel; and
(6) liberty to apply.
3
By notice dated 22 nd March, 2001 the husband asked that the terms of the order of 16 th March be clarified and/or reconsidered.
Best J. reconsidered the matter and in his judgment of 13 th December 2001 varied the order. The judgment of the 13 th December 2001 is the subject matter of this appeal.
In the notice of appeal the whole decision of the trial judge was compla ined of by the wife. Further, it was contended that the decision of the trial judge is erroneous and/or cannot be supported having regard to the evidence; and that the learned judge erred in law in that he had no justification for varying his original order of 16 th March 2001.
The relief the wife seeks is that she be granted a one half share in the matrimonial home or such share as the Court may order; that the wife and children continue to occupy the matrimonial home until the youngest child attains the age of 18 years; that the husband maintain the matrimonial home in a fit and habitable manner during the minority of the children and the husband pay the wife a lump sum in the amount of $1,000,000.00.
The husband by notice filed in the appeal seeks an order to vary the order by limiting the period whereby he was ordered to pay the wife $4,000 per month. In doing so, reference will be made to the fact that the trial judge indicated in his judgement that there was need to apply the clean break principle to the matter.
4
The Proceedings
The proceedings in this matter extended over a long period. The petition was filed on 6 th March 1998; the decree nisi was granted on 19 th July 1998. An application by the wife for custody and control of the three children of the family and an order for leave to remove the children from the jurisdiction of Trinidad and Tobago to the United Kingdom was filed on 6 th March 1998. After several hearings judgment was delivered on 4 th May 1999; notice of appeal
was filed on 10 th May 1999. On 17 th February 2000, a consent
order was entered in the Court of Appeal. Attorneys have agreed that the consent order was an interim order pending the final determination of the application of the wife for ancillary relief. The application for ancillary relief was filed in June 1999 and judgment was delivered on 16 th March 2001 and as I mentioned earlier on 13 th December 2001. The notice of appeal was filed on 24 th January 2002 on behalf of the wife and on the 6 th February 2002 the husband filed his notice seeking variation of the order of 13 th December 2001. The hearing of the appeal was on 30 th September and 1 st October 2002.
As mentioned earlier, prior to the hearing before Best J, by notice dated 6 th March 1998, the wife had sought an order for custody, care and control of the three children and an order to remove them out of the jurisdiction of Trinidad and Tobago to the United Kingdom.
5
On 4 th May 1999, Ventor J granted the wife custody, care and control of the children with reasonable access to the husband; leave to the wife to remove the children out of the jurisdiction of Trinidad and Tobago to the United Kingdom subject to a written undertaking by the wife to return the children to the jurisdiction when required to do so by an order of Court; costs; and liberty to apply. On 10 th May 1999 the husband appealed and on 17 th February 2000 after hearing attorneys for the husband and wife a consent order was entered in the following terms:
“(i) The order of Mr Justice S. Ventour dated the 4 th day of May, 1999 be varied as follows:
(a) That the leave granted to the Respondent/Petitioner – wife to remove the children of the family namely: Mathew Gregory Abraham born on 13 th October, 1989, Daniel James Abraham born on the 6 th April, 1992 and Ross Grant Abraham born on 3 rd April, 1996 be vacated.
(ii) The appellant and the Respondent shall not remove the said children from the jurisdiction of the court without the written permission of the other party.
(iii) The appellant do vacate the matrimonial home situate at 60, Cedar Avenue, Bayshore within 7 days of the date hereof and the Respondent be permitted to occupy the said home together with the said children.
(iv) The Appellant shall pay the undermentioned outgoings in respect of the said matrimonial home:-
(a) Mortgage instalment;
(b) Land and Building Taxes;
(c) Water and Sewerage Rates;
(d) Property Insurance;
(e) Swimming Pool Maintenance;
(v) That the Appellant be responsible for the discharge of the following expenditures:-
6
(a) School fees for the children of the family;
(b) School books, shoes, uniforms;
(c) Dental and medical expenses.
(vi) The appellant shall pay to the Respondent maintenance of herself and the said children the monthly sum of $7,000.00
(seven thousand) with effect from 21 st February, 2000, thereafter on the 21 st day of each and every month.
(vii) The Appellant do have access to the children of the family alternate weekends, one-half of the school vacation, one day per week from 3.00pm to 6.00pm.
(viii) The appellant do provide the Respondent with one brand new Hyundai accent motor vehicle fully insured within 42 days of the date hereof and to pay the annual insurance premium for same.
(ix) There be no order as to costs of this Appeal.
AND IT IS FURTHER ORDERED
(i) That the Appellant/Respondent do bear half of the
Respondent/Petitioner’s costs of the matter in the Court below.”
The Features of the Case
Stephen and Marguerita Abraham were married in February 1988.
Marguerita is English and Stephen is a Trinidadian. I mention this because Marguerita has no relatives in Trinidad and Tobago. Perhaps that may be the reason for her application to remove the children from this jurisdiction and take them to her homeland. At the time of marriage she was 29 years old, he was 36. They have three children: Matthew, born 13 th October 1989; Daniel, born 6 th
April 1992; and, Ross, born 3 rd April 1996. Unhappy differences seem to have arisen in 1993 and the marriage broke down in 1997, some nine years after the marriage.
7
A divorce decree nisi was granted in July 1999 and made absolute. The wife filed an application for ancillary relief which was finally determined by Best J in December 2001. This appeal as I alluded to earlier is against that order.
It is accepted that divorce creates many problems. The most frequent question that arises concerns the division of property and financial support for a spouse, usually the wife, and for the children. Therefore, the order of the Court must be as fair as possible to both sides, especially where there are young children whose welfare, maintenance and education are paramount. The features and circumstances differ in each case and based upon the Act and case law the Courts always seek a result which falls within the accepted standard of fairness.
The wife’s appeal was founded on the ground that the decision of the trial judge cannot be supported by the evidence. Particular criticism was directed to the learned judge’s approach in arriving at his order. Counsel for the appellant submitted that the judge’s reasons were not in-depth. He did not ask the parties to submit a valuation of the matrimonial home or the furniture. Based upon the standard of living enjoyed prior to the divorce the learned judge ought to have juxtaposed the husband’s affidavit setting out his earnings and expenses with the lifestyle the family enjoyed. In other words Counsel argues that the family could not have subsisted on what he had deposed, if the evidence had been more carefully scrutinized it would have been open to the judge to find
8
that the husband earned much more than he actually deposed and the maintenance order should have been higher. Counsel continued that the judge did not set out how he arrived at his finding in respect of the length of the marriage, moreso, in the light of the contribution of the wife in raising the children. If the foregoing factors had been considered the judge’s order would have reflected higher awards for the wife and children. Counsel for the wife sought to demonstrate that the learned judge did not adequately apply accepted principles of law in determining the family assets, the duration of the marriage and the future earning capacity of both parties. Counsel for the husband contended that, in the absence of concrete evidence of the husband’s income through his half share in the racing pool, the Court was being asked to speculate.
The suggestions of each counsel varied as regards maintenance for the children from $2,000 per child as suggested by counsel for the wife to $1,500 per child as suggested by counsel for the husband; the current payments of maintenance for the wife of $4,000 per month should cease as she is still relatively young, of a marriageable age and has a job as a real estate agent, said counsel for the husband. He submitted that her skills and the period of marriage were not thoroughly considered by the judge.
During her submission Counsel for the wife asked the Court to consider sending the matter back to the matrimonial court for a re- hearing which will facilitate the productio n of further and fresh evidence to assist the judge.
9
But these proceedings have already been prolonged enough. In family matters there could be mental trauma and emotions can run high. Litigation must come to an end and parties allowed to move ahead with their lives. In all the circumstances and in the best interest of everyone particularly the children, I do not think the matter should be re-mitted for a re-hearing.
The assets (the matrimonial home)
In
Wachtel v Wachtel
[
1973] EWCA Civ 10; (1973) 1 All ER 829 at p.836 c Lord
Denning M.R. said:
“the phrase ‘family assets’ is a convenient short way of expressing an important concept. It refers to those things which were acquired by one or other or both of the parties, with the intention that they should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole… The family assets can be divided into two parts: (i) those which are of a capital nature, such as the matrimonial home and furniture in it; those which are of a revenue producing nature, such as the earning power
of husband and wife.”
The instant case is not the typical case of two people starting their married life with little or nothing with both having earning capabilities and working towards improving their stations in life. The wife has made no financial contribution to the marriage. The husband bought the matrimonial home and paid the mortgage instalments and ‘outgoings’. He was the sole financial provider. In fact the matrimonial home is solely owned by him. Obviously, prior to the breakdown of the marriage it was the intention to provide it as a home for the family.
10
Lord Denning went on to say, and it is the case in the instant matter, that:
“the matrimonial home is usually the most important capital asset. Often the only one”. Wachtel v Wachtel p. 836 j.
The husband purchased the matrimonial home in 1989. He used funds realized from the sale of his apartment and funds from mortgaging the property, the wife made no financial contribution. He was working but she was not, although she deposes that she was willing to assist in his business and use her managerial skills, but he turned down her offer. The husband deposed that that was not correct.
In his judgment the learned judge did not specifically comment or make a finding he said inter alia:
“There is evidence to support the view, and I so hold that the Petitioner did not earn a beneficial interest in the properties in England and Trinidad as she made no financial contribution to their acquisition
Lord Denning MR in
Wachtel v Wachtel
[1973] EWCA Civ 10; [1973] Fam 72 at page 93 stated:
‘We may take it that Parliament recognised that the wife who looks after the home and family contributes as much as to the family assets as the wife who goes out to work. The one contributes in kind. The other in money or money’s worth.’
In addition, I have had recourse to section 27 (1) of the matrimonial Proceedings and Property Act that the court can have, inter alia, to the income financial needs, standard of living, age of the parties, duration of the marriage and any contribution made by looking after the home or caring for the family so as to place, as far as is possible, any party in the financial position in which they would have been if the marriage
11
had not broken down and each had properly discharged his financial obligations and responsibilities towards the other.
In determining this matter, I have factored the following into my consideration.
1. The length of the marriage;
2. The age of the parties.
3. The role of the Petitioner as homemaker and mother.
4. That the Petitioner is within the marriageable age;
5. That the Petitioner is possessed of the necessary skills to re-
enter the workforce.
6. The fact that the Petitioner is now the custodial parent;
7. The role of the Respondent as provider for the family;
8. The standard of living enjoyed by the family before the breakdown of the marriage;
and 9. The need to apply the clean break principle to this matter.
The evidence suggests, and I accept, that the capital assets of this family consist of the two homes in Trinidad and England.
Upon a re- view of the evidence, I am of the view and so hold that the Petitioner has effected, without a financial contribution, a shift in the capital assets of this family.
In so doing, I am mindful of the monies expended by the Respondent on the acquisition and maintenance of these properties.
Finally, I wish to indicate that I have read a transcript of the evidence and perused the Order in Court of Appeal No.54 of 1999.”
The learned judge did not explain how he arrived at his findings or set out in some detail why he made the orders. In the circumstances the matter is at large for consideration by this Court.
I agree that a wife who looks after the home and family, as seems apparent in this case, contributes as much to the family assets as the wife who goes out to work. The one contributes in kind. The other is money or money’s worth.
12
However it is with the foregoing in mind the Court must carry out a delicate exercise to ensure fairness to the husband, and wife as well as what is best for the children in the circumstances, particularly where the wife is supplied with a housekeeper paid for by the husband, so that the English cases on contribution in kind by the wife are not ipso facto applicable.
The Length of the Marriage
Counsel for the husband submitted that in the light of the authorities cited the marriage was relatively short. Counsel for the wife was of the view that in these circumstances the marriage did not fall within the category of short marriages.
The learned judge did not say whether he found that the marriage was a ‘short’ marriage; whether the wife’s custody of the children and looking after them had a beneficial impact on her claim for maintenance or whether the husband or wife altered their financial position. One can indubitably presume that the judge considered the above in the light of counsels’ submissions and the plethora of case law on the subject. Nevertheless, learned counsel have asked this court to review the judge’s finding and adjust or vary his order.
What then is a “short marriage” ? Section 27 (1) of the Act sets out matters to which the Court is to have regard in deciding what orders to make under sections 24 (financial provision for a party to a marriage) and section 26 (orders for transfer and settlement of
13
property and for variation of settlements). Section 27 (1) (d)
provides one of the matters it reads:
(d) “the age of each party to the marriage and the duration of the marriage”.
This simply means that in a short marriage the wife will get less, see Wachtel v Wachtel 1973 1 A.E.R. p 829.
In Matrimonial Property and Finance Volume 1. fourth edition by
Peter Duckworth at p 264 the question is posed: “How short is a
‘short marriage” ? The author answered as follows:
“ there is of course no magic in the term ‘short marriage’. Eight years is the medium length of all marriages in England and Wales ending in divorce, so in a sense, a short marriage is something less (but see Foster v Foster (1977) 7 Fam Law 112 where a 12-year marriage was regarded as ‘short’ in view of the 28 years which had elapsed since the parting; no lump sum for wife). Needless to say it is all a question of degree and the presence or absence of children is an important psychological factor.”
An empirical study has not been made of what is the medium length of marriages in Trinidad and Tobago. But a study of recent decisions in the local matrimonial courts show that the medium length of all marriages could be seven years.
Counsel for the husband argued that the marriage was relatively short and although the wife was the apparent ‘homemaker’ in reality her contribution does not entitle her to as large a share as that proposed by her counsel.
14
Counsel for the wife had stressed fairness, the fact that there are three young children of the marriage and the wife has custody of them. If all the factors are considered the marriage is not a short marriage.
In these circumstances I do not think this is a short marriage.
Before proceeding, it would be convenient to set out the relevant section of the Act because I shall be referring to them as I consider the other matters.
27. (1) In deciding whether to exercise its powers under section 24 or 26 in relation to a party to the marriage and, if so, in what manner, the Court shall 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;
(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;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to
the marriage;
(f) contributions 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;
(g) any order made under section 53;
(h) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party
will lose the chance of acquiring;
and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had
15
not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.
(2) Without prejudice to subsection (3), it shall be the duty of the Court in deciding whether to exercise its powers under section 25
or 26 in relation to a child of the family and, if so, in what manner, to
have regard to all the circumstances of the case including the
following matters:
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the standard of living enjoyed by the family before the breakdown of the marriage;
(e) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained,
and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in
relation to the parties to the marriage in subsection (1) (a) and (b), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him,
(3) In deciding whether to exercise its powers under section 25
or 26 against a party to a marriage in favour of a child of the family who is not the child of that party and, if so, in what manner the court
shall have regard (among the circumstances of the case)-
(a) to whether that party had assumed any responsibility
for the child’s maintenance and, if so, to the extend to which, and the basis upon which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
(b) to whether in assuming and discharging such
responsibility that party did so knowing that the child was not his or her own;
(c) to the liability of any other person to maintain the child.”
The age of the parties is not disputed, they are both relatively young; they are still within the marriageable age; the wife, by her own admission, possesses certain managerial skills to re-enter the
16
workplace; the wife has custody of the children and the family enjoyed a more than adequate standard of living before the breakdown of the marriage. The wife performed her role as mother and in the home to a large extent and the husband as the sole provider of the family. However, she did not make any financial contribution to the marriage.
(Assets) 1 Havington Gardens, North Baddesley, Hampshire (the
U.K. property).
Best J ordered that the U.K. property be sold and the funds realised therefrom be used to purchase a home for the wife and children to a value of 2/3 the value of the matrimonial home. However, there is no valuation report of the matrimonial home in evidence. The wife deposed that the matrimonial home is valued at $1.8 million, the husband deposed $1.3 million. The U.K. property in which the wife had a half share was sold and the funds realised are held on deposit in the sum of £109,000. I do not agree with Mr Marcus’ argument that because the husband purchased the property with his funds although he gave the wife a half share she is not entitled to claim it. The presumption of advancement applied and there was no attempt to rebut it by the husband. The share had been legally transferred to her. So, in setting out the family assets for purposes of division in a ‘clean break’ half of the funds must be part of her assets.
17
In accordance with the Consent Order of the Court of Appeal the husband purchased a car valued at approximately $89,048.95, and comprehensive motor insurance of $12,021.07, making a total
$101,070.02. Although included in the ‘interim’ order of the Court of Appeal, this must be viewed as a transfer of property by the husband to the wife for the purposes of her ancillary relief application.
The Paine -Webber Account
The husband owns an account at Paine Webber in the sum of
$120,000 U.S., however, counsel submitted that this account must have been considerably depleted because the husband has had to withdraw monies to supplement his income in order to maintain the family since the filing of his affidavit. About this account two things need to be said:-
(i) it is readily apparent from the judgement of Best J. that he did not take this sum into account and counsel for the husband concedes that he ought to have; and
(ii) it was agreed at the start of the appeal that the evidence to be used by this court in arriving at its decision was the evidence which was before Best J. In light of the latter for all intents and purposes because there is no evidence of depletion, this account must be taken as $120,000 U.S.
18
Furniture in the Matrimonial Home
The furniture in the matrimonial home is valued at $60,000, although even on this there is dispute between the parties.
So, the “family assets” are: the matrimonial home and furniture; the husband and wife’s cars and the funds from the sale of the U.K. property; and, the Paine-Webber account.
How then are these assets to be apportioned in a ‘clean break’;
bearing in mind that there are three young children whose welfare as I said must be paramount? The wife has been granted custody therefore they must have a ‘roof over their heads’, a home. The standard of living enjoyed by the family is important see section 27
(1) (c) and with respect to the children section 27 (2) (d) of the Act.
Therefore the Court must have regard to what is set out in the Act. See also Browne v Prichard 1975 1 WLR. 1369 D. The Act confers wide dis cretionary powers on the courts over the property
(assets) of the husband and wife. The question must be whether the judge exercised these powers in the best interest of the parties.
The So-Called One Third Rule
The one-third rule has been criticised in several cases but I think it is a starting point in arriving at a finding. It seems to me that the order can be more or less than one-third depending on the
19
circumstances of the case. In Wachtel v Wachtel (cit. above) at p 839 c Lord Denning said:
“In Kershaw v Kershaw 1 Sir Jocelyn Simon P spoke of it as ‘the discredited “one –third rule”’. But it has retained its attraction for a very simple reason: those who have to assess maintenance must have some starting point. They cannot operate in a void. No better starting point has yet been suggested that the one -third rule.
In Ackerman v Ackerman 2 Phillimore LJ said: ‘… the proper course is to start again. I would begin with the “one -third rule”- bearing in mind that it is not a rule.’
There was, we think, much good sense in taking one -third as a starting point. When a marriage breaks up, there will thenceforward be two households instead of one. The husband will have to go out to work all day and must get some woman to look after the house-either a wife, if he remarries, or a housekeeper, if he does not. He will also have to provide maintenance for the children. The wife will not usually have so much expense. She may go out to work herself, but she will not usually employ a housekeeper. She will do most of the housework herself, perhaps with some help. Or she may remarry, in which case her new husband will provide for her. In any case, when there are two households, the greater expense will, in most cases, fall on the husband that the wife. As a start has to be made somewhere, it seems to us that in the past it was quite fair to start with one -third. Counsel for the wife criticised the application of the so-called ‘one - third rule’ on the ground that it no longer is applicable to present- day conditions, notwithstanding what was said in Ackerman v Ackerman 3 . But this so-called rule is not a rule and must never be
so regarded. In any calculation the court has to have a starting
point. If it is not to be one -third, should it be one -half? Or one - quarter? A starting point at one -third of the combined resources
of the parties is as good and rational a starting point as any other,
remembering that the essence of the legislation is to secure flexibility to meet the justice of particular cases, and not rigidity, forcing particular cases to be fitted into some so-called principle within which they do not easily lie. There may be cases where more than one -third is right. There are likely to be many others where less than one -third is the only practicable solution. But one third as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter.”
20
I think the Wachtel approach ought to be a guide to a solution, not necessarily the way. Although, he did not specifically set this out in his reasons the trial judge seems to have used such an approach. Both counsel were critical of the order. Counsel for the wife submitted that in the light of the evidence the order should be reviewed and varied upwards. Counsel for the husband asked the court to review the order downwards bearing in mind the Act and case law and the evidence led before the judge. As I alluded to earlier the judge’s reasons for arriving at his conclusions were not in-depth, but he also failed to take into account a substantial asset of the husband. It is therefore open to this court to review the exercise of the wide discretion the judge had by virtue of the Act.
The welfare of the children is important, the wife has custody of them and they ought to have a home in which they can experience the standard of living enjoyed by the family before the breakdown of the marriage.
In White v White (2000) 3 W.L.R. p 1571 at p 1578 D Lord
Nicholls said:
“Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As Butler-Sloss L.J. said in Dart v Dart [1996] 2 F.L.R. 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. But there
is one principle of universal application which can be stated with
confidence. In seeking to achieve a fair outcome, there is no discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning
21
money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour
is no longer the order of the day. Frequently both parents work.
Sometimes it is the wife who is the money-earner, and the husband runs the home and care for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when conside ring paragraph (f), relating to the parties’ contributions. This is implicit in the very language of paragraph (f): “the contributions which each . . . has made or is likely . . . to make to the welfare of the family , including any contribution by looking after the home or caring for the family.” (Emphasis added.) If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home -maker and the child-carer.”
With the above passages from Wachtel and White predominantly in mind and fairness being a major requirement, I would vary the order of Best J and order that:
(1) the funds realised from the sale of the U.K. property be used by the wife to purchase a home, furniture and appliances for herself and the children, this property is to be vested in the name of the wife;
(2) the matrimonial home be vacated upon purchase and occupation of the new home; the purchase of the new home and the vacation of the matrimonial home be done on or before the 31 st July 2003;
(3) (a) the respondent pay the appellant the sum of $2,000 per child per month until each child attains the age of 18 years commencing
21 st November 2002 or until further order;
22
(b) the sum of $4,000 per month be paid to the wife for twelve months commencing 21 st November 2002 (this period should enable her to settle in the workplace);
(4) each do retain their cars and personal accounts; and,
(5) there be liberty to apply.
For the above reasons the wife’s appeal is allowed in part and the husband succeeds in respect of his notice. In the circumstances each party will bear his/her own costs of the appeal.
Anthony A. Lucky
Justice of Appeal
I have read the judgment of Lucky J.A. in draft. I agree with it and
I have nothing to add.
W. Kangaloo
Justice of Appeal
I also agree.
S. John
Justice of Appeal
23
24
[Context] [Hide Context]
CommonLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.commonlii.org/tt/cases/TTCA/2002/38.html