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CYNTHIA MOHAMMED PLAINTIFF AND HALIM MOHAMMED DEFENDANT [2007] TTHC 10 (30 January 2007)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

No. 1729 of 2003

BETWEEN

CYNTHIA MOHAMMED

Plaintiff

AND

HALIM MOHAMMED

Defendant

**********

Before the Honourable Mr. Justice Narine

Appearances:

Mr. Robert Boodoosingh for the Plaintiff

Ms. Shobna Persaud for the Defendant

REASONS

Before the Court is an Originating Summons filed on 23^rd June 2003. The Plaintiff seeks:

1. A lump sum or periodical payment for her maintenance.

2. Maintenance for the minor children of the family, and

3. A share in the matrimonial home situate at No. 42 Pasea Main Road , Tunapuna.

FACTS

The parties were married under the Muslim Marriage and Divorce Act Ch. 45:02, on 5^th January 1992. They had two children, Shardel, born on 22^nd November, 1992 and Safraz born on 2^nd March, 1996. Unhappy differences arose between the parties. A petition for the dissolution of the marriage was presented by the Defendant to the Divorce Council of the Anjuman Sunnat al Jammat Association on 21^st March, 2000.

During the marriage the parties lived in a house at No. 42 Pasea Main Road, Tunapuna. The Plaintiff alleges that the Defendant was habitually under the influence of alcohol and subjected her to physical and emotional abuse. As a result she instituted proceedings on three occasions at the Tunapuna Magistrates Court under the Domestic Violence Act. These applications were eventually dismissed at the Tunapuna Magistrates Court. The Defendant left the home in November 1999. He returned in July 2000, whereupon the Plaintiff left the matrimonial home with her children for fear of violence.

Ms. Persaud submitted that the wife’s application should be dismissed, having been brought some 3 years after the marriage was dissolved.

This marriage was celebrated in 1992 under the Muslim Marriage and Divorce Act. Ch. 45:02, and was dissolved under the same Act.

The Petition has not been annexed to these proceedings. I am not aware if any application was made in those proceedings for ancillary relief.

Accordingly, on the evidence before me I am not satisfied that the Respondent requires leave to bring this application since, clearly the Petition was not brought under the Matrimonial Property and Proceedings Act. Ch. 46:51.

In case I am wrong, I will grant leave to the Plaintiff to bring this application since I am satisfied that the delay in bringing this application does not prejudice the husband as much as the hardship that will be caused to the wife by a refusal of such leave. In addition, it seems to me that the Defendant has waived his right to take this procedural point, having taken steps in the proceedings, and having consented to an order in respect of the maintenance of the children of the family under paragraph 2 of the Originating Summons on 2^nd November, 2006.

I expressly take into account the matters set out in s. 27(1) of the Matrimonial Proceedings and Property Act. In particular,

• The income, earning capacity, property and other resources of the parties.

The Wife earns $2,000.00 a month. She owns no property. The Defendant owns and operates his own business. He claims that he earns $6,000.00 a month. He operates two accounts with Scotia Bank which reflect balances of $104,315.35 and $79,420.70. He owns a Honda Civic motor vehicle valued at $40,000.00. He is also part owner of the land at 42 Pasea Main Road, Tunapuna together with his two brothers. The land is valued at $640,000.00. The house which was the former matrimonial home is valued at $450,000.00. It came out in cross-examination that the Defendant has an account in Miami in which he has $7,000.00 (U.S.). This account was not previously disclosed by the Defendant.

• The financial needs and obligations of the parties.

Both parties have the usual needs – food, clothing, shelter, transport and medical care. The Plaintiff lives at her mother’s home with the children. The Defendant has formed a new association and lives with his companion and their child at the matrimonial home. The Defendant maintains his new household, and pays maintenance for the children of the marriage in the sum of $1,000.00 per month for both children.

• The age of the parties and the duration of the marriage.

The Plaintiff is now 39 years old. The Defendant is 40. They were married on 5^th January 1992. The marriage was dissolved on 16^th October 2000.

• The contributions made by each of the parties.

The wife was the primary care giver in the family. She still cares for the children of the family at her mother’s home. She alleges that she worked in her husband’s business ventures during the marriage, without a salary in order to assist her husband in the construction/renovation of the matrimonial home. The Defendant denies this. Having had the opportunity to view both parties under brief cross-examination I accept the Plaintiff’s evidence. The Defendant has deliberately failed to disclose his bank account in Miami, which has a substantial deposit of $7,000.00 (U.S.). The Court is entitled to draw robust inferences from his failure to be candid with the Court. Moreover, the Defendant has given me the distinct impression in his evidence that he does not wish the Plaintiff to derive any financial benefit from the marriage.

The requirement of fairness

The Act requires the Court to exercise its powers so as to achieve an outcome which is “just”. The Court must be fair to both parties. The conceptual difficulty in carrying out this directive in a particular case is well articulated by Lord Nicholls of Birkenhead in the recent cases of Miller v Miller and McFarlane v McFarlane (2006) UKHL 24 in paragraph 4 of his judgment:

“4. Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process or logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case”.

The modern approach by the Courts in applying the principle of ‘fairness’ to distribution of matrimonial assets is encapsulated in the following dictum of the same Judge in the earlier case of White v White (2000) UKHL 54 under the rubric “Equality”.

“In seeking to achieve a fair outcome, there is no place for discrimination between respondent and wife and their respective roles. Typically a respondent and wife share the activities of earning money, running their home and caring for their children. Traditionally, the respondent 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 respondent runs the home and cares for children during the day. But whatever the division of labour chosen by the respondent and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions. This is implicit in the very language of paragraph (f): ‘…the contribution 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.’ 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. There are cases, of which the Court of Appeal decision in Page v Page (1981) 2 FLR 198 is perhaps an instance, where the court may have lost sight of this principle.

A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court refocus on the need to ensure the absence of discrimination.

This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time.”

THE ORDER

In this case the land on which the matrimonial home is located is jointly owned by the Defendant and two (2) other persons. This makes it impractical to order a transfer, or a property adjustment order. It seems to me that in the circumstances, the wife’s interest must be satisfied by a lump sum, which will reflect her contribution to the marriage and the welfare of the family. From the evidence, it seems to me that the Defendant has sufficient funds to make a substantial lump sum payment, without depriving his business of working capital. He may choose to borrow a part of the sum. I also take into account the valuation of Mr. Lawrence De Leon who puts the value of the land at $640,000.00 and the main building at $450,000.00. Taking all these matters into consideration I make the following order:

The Defendant is ordered to make a lump sum payment to the Plaintiff of $250,000.00 by three equal payments as follows:

$100,000.00 on or before 30^th November 2006.

$100,000.00 on or before 31^st December 2006.

$50,000.00 on or before 31^st January 2007.

The Defendant will pay the Plaintiff’s costs of the Originating Summons filed on 23^rd June 2003.

Dated the 30^th day of January 2007.

Rajendra Narine

Judge.

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