Tyson v Tyson et Al
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Hariprashad-Charles, J. |
| Judgment Date | 11 July 2001 |
| Neutral Citation | KN 2001 HC 8 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | Divisional Suit No. 04 of 2000 |
| Date | 11 July 2001 |
High Court
Hariprashad-Charles, J.
Divisional Suit No. 04 of 2000
Ms. Myrna Walwyn for the petitioner, with her is Ms. Althea Jarrett.
Mr. Theodore Hobson for the respondent.
Family law - Divorce — Property settlement — Petitioner filed application for ancillary relief seeking declaration of ownership of matrimonial property — Land given to parties as gift by wife's mother — Whether petitioner solely entitled to land on dissolution of marriage — White v. White [2000] 3 W.L.R. referred to — Substantial contribution by wife — Court forced to depart from maxim “equality is equity” — Determination of parties interests at 75% and 25% to petitioner and respondent respectively — Order that petitioner pay to respondent the equivalent of 25% of the value of the property — respondent to vacate matrimonial home as soon as possible.
This is an unfortunate dispute. The petitioner and the respondent were married on the 15th day of June 1974 in New York, United States of America. He was 35 and a divorcee. She was 29 and a spinster. After the said marriage, the parties lived and cohabited at Hill Avenue, Bronx, New York. They had two children, a boy, Cory Makani who is now 25 and a girl, Corinne Monale, age 17. Both children were born in New York.
The petitioner is a Registered Nurse having qualified both in England and New York and is presently employed at the Four Seasons Resort Hotel as the Director of Health. The respondent is an Electronic Engineer operating as a Radio and Television Technician. They are in a good position in life in the lovely island of Nevis where they have been residing since 1981.
Unfortunately, differences arose between them and the once harmonious marriage relationship became turbulent and rocky. The respondent's adulterous relationship with the co-respondent, Charlene Nisbett was no secret. Out of this promiscuous affair, a child was born. The respondent accepted paternity. His name appeared on the child's birth certificate.
On 3rd day of March 2000, the petitioner filed a petition seeking dissolution of the marriage on the grounds of adultery, cruelty and desertion. A decree nisi was pronounced in her favour on 17th day of November 2000 on the ground of the respondent's adultery with the co-respondent.
Four days later, the petitioner filed an application for Ancillary Relief under the Matrimonial Causes Act 1948 (CAP.50 of the Revised Laws of St. Christopher and Nevis) and section 19 of the Married Women's Property Act, CAP.328 claiming the following reliefs:
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(1) A Declaration that she is entitled to sole ownership of the matrimonial home situate at Hanley's Road, Nevis recorded in the joint names of the petitioner and the respondent and
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(2) An Order that the respondent do pay to the petitioner a maintenance of five hundred dollars per month or such sum as the court may seem just.
On the date of hearing, learned counsel for the petitioner, Ms. Walwyn abandoned the issue of maintenance and proceeded with the first application relating to the matrimonial property.
(a) THE LAND (1.446 acres)
It is common ground that the land on which the matrimonial home stands was a gift to the petitioner and the respondent by the petitioner's mother. It was conveyed to them as “an absolute gift for and in consideration of the love and affection that the mother holds for her daughter and son-in-law.” It was also conveyed to them as joint tenants with rights to survivorship [my emphasis] their heirs and assigns.
Learned counsel for the petitioner, Ms. Walwyn implored the court to find that the land is the sole property of the petitioner. Counsel submitted that it was the intention of the petitioner's mother at the time that the gift was made that her daughter and son-in-law should build a house on the land and live there happily together in conjugal bliss for the duration of their natural lives.
Learned counsel trenchantly argued that the intention of the petitioner's mother is of paramount importance. She emphasized that the gift was given to the parties jointly upon the respondent promising that he would take care of the petitioner and that he would love and cherish her. The treatment meted out to the petitioner by the respondent as encapsulated in the petitioner's affidavits of 21st day of November 2000 and 16th day of February 2001 respectively fell pathetically short of what the petitioner's mother expected of the respondent.
Counsel relied on a dicta in the recent House of Lords decision in White v. White [2000] 3 W.L.R. 1571. At page 1583, Lord Nicholls of Birkenhead stated:
“…property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property.
Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The Judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered.”
On the other hand, the respondent did not have much to say except that it was a gift to both himself and the petitioner to which he had offered to pay.
I do not disagree with learned counsel for the petitioner that the intention of the petitioner's mother is important. And that intention was expressly stipulated in the Deed of Conveyance made on the 14th day of September 1978. It reads:
“the Grantor…granted and conveyed unto the Grantees as an absolute gift to them… for and in consideration of the love and affection which the Grantor holds for the Grantees…. the grantor as beneficial owner Grant and Convey Unto the Grantees as joint tenants with rights of survivorship their heirs and assigns.”
Even though I must confess to have been very impressed by the ingenuous arguments of learned counsel for the petitioner, I find that the intention of the petitioner's mother at the date of the execution of the Deed of Conveyance was that the petitioner and the respondent should hold the gift as joint tenants with rights to survivorship for the benefit of both.
I therefore declare that the parties are entitled to equal share of the land and I so hold. In coming to this conclusion, I refer to the dicta of Lord Nicholls of Bickenhead in White v. White [supra] which Learned Counsel for the petitioner alluded to: “Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. in fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it.”[My emphasis]
I venture to say that had the petitioner's mother intended to convey the parcel of land to her daughter alone, she could have done or said so. In the Trinidadian case of Mahabir v. Mahabir (1964) 7 W.I.R. 131 it was the intention of the wife's father that the wife alone should benefit from the money that he gave to the wife, his daughter.
The respondent claims joint ownership with the petitioner and a consequential one-half share of the matrimonial home. The petitioner claims an entitlement of at least 75% of the said home.
It is not disputed that the matrimonial home was constructed at a cost of $160,000.00 exclusive of electrical works. It is also not disputed that the parties obtained a Mortgage from the St. Kitts-Nevis-Anguilla National Bank in the sum of $100,000.00 to construct the said matrimonial home and that $60,000.00 was from savings.
They part company when the petitioner averred that the sum of $60,000.00 was financed primarily by herself with minimum assistance from the respondent from earnings in the United States of America. The respondent denied this bit of evidence and said: “That at that time we had saved in the Saving Account at National Bank about $60,000.00 most of which I had put into the account as I had a very good job.”
There was also conflicting evidence in respect of the electrical works. The respondent said that he paid Mr. Swanston $5,000.00 for the electrical works out of his own funds. The petitioner provided documentary evidence to substantiate her allegation that she paid Mr. Swanston.
In respect of the mortgage repayment, at paragraph 24 of his affidavit, the respondent alleged: “That the statement in the petitioner's affidavit in paragraph 9 that the mortgage was fully paid by her is absolutely untrue. The mortgage was paid out of our joint account at National Bank, Nevis which we both contributed to.”
At paragraphs 6 and 9 of her affidavit filed on 21st day of November 2000, this is what the petitioner averred: “The mortgage repayments were in the sum of EC$1,327.00 monthly and that sum was deducted from my account at St. Kitts-Nevis-Anguilla National Bank by standing order in respect of the said mortgage. The said mortgage was fully paid by me in or about September 1990.
The petitioner substantiated her averment by producing a statement of the Bank to show that her salary was deposited in the National Bank and the mortgage repayment of...
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